Reservation

Should Reservations Exceed the 50% Cap?

Context: The opposition leader in Bihar has pledged to raise the quota limit to 85% if voted to power. At the same time, the Supreme Court has issued notice to the Union government on a petition seeking the introduction of a ‘creamy layer’ system for SCs and STs.

Relevance of the Topic: Mains: Should reservations exceed the 50 % cap ?

Reservation in the Indian Constitution is envisaged as a corrective mechanism to redress historical injustices and ensure substantive equality. Mere formal equality could not dismantle entrenched social hierarchies in India, and thus reservation empowered the State to adopt affirmative action for disadvantaged groups.

What are the Constitutional Provisions? 

  • Article 15(4) and 15(5) empower the State to make special provisions for the advancement of socially and educationally backward classes, including SCs and STs, particularly in educational institutions.
  • Article 16(4) allows the State to provide reservations in public employment for backward classes not adequately represented in services.
  • Articles 16(4A) and 16(4B), inserted through constitutional amendments, permit reservation in promotions for SCs and STs and allow the carry forward of unfilled reserved vacancies.
  • Article 46 directs the State to promote the educational and economic interests of weaker sections, especially SCs and STs.

The reservation in the Centre at present stands as follows: OBCs (27%), SCs (15%), STs (7.5%) and for the Economically Weaker Section (10%), resulting in a total reservation of 59.5%. 

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Important Court Rulings in this Context: 

  • In Balaji v. State of Mysore (1962), the SC held that reservations should remain within reasonable limits and should not exceed 50%.
  • In State of Kerala v. N.M. Thomas (1975), the SC observed that reservation is not an exception to equality, but a facet of equality of opportunity under Article 16; though it did not rule on the 50% ceiling.
  • In Indra Sawhney (1992), the SC upheld 27% reservation for OBCs, and introduced the concept of a creamy layer within OBCs. The court laid down the 50% ceiling rule, subject to extraordinary circumstances. 
  • In Janhit Abhiyan (2022), the SC upheld the 103rd Constitutional Amendment and the validity of 10% EWS quota. It clarified that the 50% limit applies only to backward class reservations, and not to the EWS category. 
  • In State of Punjab v. Davinder Singh (2024), the SC upheld the power of states to make sub-classification within SCs/STs. 

Arguments for Exceeding the 50% Cap: 

  • Proportional Representation: Backward classes form a majority of the population, and proportional representation requires a higher quota share.
  • Substantive equality demands going beyond formal equality, as historical injustices and deep-rooted discrimination cannot be addressed with a 50% limit.
  • Address persistent underrepresentation of SCs, STs, and OBCs which still continues, with many reserved posts remaining unfilled.
  • States with higher percentages of marginalised populations argue that a rigid 50% ceiling undermines their autonomy to design policies that reflect their demographic realities. 

Arguments against Exceeding the 50% Cap:

  • Critics argue that excessively high quotas (such as 85%) would violate the constitutional principle of equality of opportunity.
  • Judicial precedents have consistently upheld the 50% ceiling as a safeguard against excessive reservations that may harm merit-based selection.
  • Large numbers of reserved vacancies remain unfilled, suggesting that higher quotas alone may not ensure representation and could worsen backlog vacancies. In the absence of creamy layer exclusion for SCs/STs, benefits get concentrated among advanced sub-groups, leaving the most deprived behind.

Way Forward

  • Policymaking on reservation should be based on empirical evidence from the 2027 Census, which is expected to include caste enumeration.
  • Implement the Rohini Commission’s sub-categorisation to distribute OBC benefits more equitably.
  • Introduce a two-tier system for SCs/STs prioritising the most marginalised sections.
  • Efforts on complementary measures such as skill development, access to quality education, and inclusion of marginalized groups in the private sector.

India needs a consensus-driven solution which balances equality of opportunity with the demands of social justice.

SC issues notice to introduce ‘creamy layer’ in SC/ST Reservation

Context: The Supreme Court has decided to examine a petition to introduce a “system”, similar to the creamy layer concept for the Other Backward Classes (OBC). This seeks to achieve equitable distribution of reservation benefits among the Scheduled Castes and the Scheduled Tribes.

Relevance of the Topic: Prelims: Provisions for Reservation in India, Concept of creamy layer. Mains: Creamy layer in SC/ST reservations: Pros & Cons.

The petition contends that the present system of reservation disproportionately benefits economically better-off members within SC/ST groups, while the poorest and most marginalised sections remain excluded from real upliftment.

Reservation in India

Reservation in India is primarily caste-based, intended to address historical discrimination and social exclusion.

  • Articles 15(4): Allows the State (Union or State governments) to make special provisions, including reservations in education and other affirmative measures for:
    • Socially and Educationally Backward Classes (SEBCs)
    • Scheduled Castes (SCs)
    • Scheduled Tribes (STs)
  • Article 16(4): Permits the State to make laws or policies for reserving appointments or posts in public employment in favour of any backward class of citizens which, in the State’s opinion, is not adequately represented in its services.
  • Article 46: Directive Principle (DPSP) urging the State to promote educational and economic interests of SC/STs.
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Creamy layer concept in Reservation: 

  • The creamy layer concept was introduced in Indra Sawhney v. Union of India (1992) for OBCs, excluding the economically advanced among them from availing reservation benefits.
  • SC/ST reservations have so far been exempted from the creamy layer concept on the grounds that social discrimination against them operates regardless of income or education.

Over the years, concerns have been raised that within SC/ST communities, relatively affluent sections are cornering a disproportionate share of the opportunities.

Petition’s Key Proposals: 

  • The petition sought the introduction of a two-tier reservation system to be implemented within SC/ST categories, prioritising individuals from economically weaker sections before extending benefits to those who are relatively well-off.
  • The proposal for restructuring does not involve any reduction in the current percentage of reservation for SC/ST or other minority communities but refine it by introducing income-based prioritisation.

Arguments in Favour of Applying Creamy Layer to SC/STs: 

  • Ensures equitable distribution of benefits within the community.
  • Prevents the perpetuation of inequality within SC/ST groups.
  • Direct reservation benefits to those in greatest need of upliftment.
  • Aligns with economic justice principles in the Preamble.

Arguments Against:

  • Caste-based discrimination can persist despite economic advancement.
  • Risk of diluting the original purpose of SC/ST reservations which is to counter historical social exclusion, not just economic deprivation.
  • Practical difficulty in defining and implementing economic criteria fairly.
  • Potential to trigger social and political unrest within SC/ST communities.

Way Forward

  • Commission an empirical study to assess intra-community disparities in SC/ST groups.
  • Develop transparent and uniform income criteria if creamy layer is to be applied.
  • Maintain affirmative action for socially disadvantaged while ensuring economic prioritisation.
  • Consider phased implementation with extensive stakeholder consultation to avoid social backlash.

The proposal to apply the creamy layer principle to SC/ST reservations is a significant policy shift that attempts to reconcile social justice with economic fairness. 

However, it must be approached with constitutional sensitivity, robust data, and political consensus to ensure that the most marginalised within these communities are not left behind.

Mains Practice Question:  

Q. The introduction of a creamy layer within SC/ST reservations may improve the equitable distribution of benefits but risks undermining the core objective of affirmative action. Critically analyse. 

Telangana becomes first State to implement SC Subcategorisation

Context: Telangana has become the first State to notify subcategorisation of Scheduled Castes after the Supreme Court verdict by classifying the 59 sub-castes into three groups for implementation of the reservation. 

Relevance of the Topic: Mains: Subcategorisation of SCs: Benefits and Challenges.

Background:

  • On 1 August 2024, a seven-judge constitution bench of the Supreme Court in the State of Punjab vs Davinder Singh judgement held that sub-classification of SC and ST categories is permissible. Also, States have power to create these sub-classifications. 
  • Earlier, the Supreme Court in E. V. Chinnaiah vs State of Andhra Pradesh (2004) had ruled that sub-classification was not permissible in the SC category. The Davinder Singh Judgement has overturned the E. V. Chinnaiah judgement.
  • Karnataka has formed a commission headed by (Justice) Nagmohan Das to collect empirical data in this regard.

Present Status of Reserved Categories

  • Currently, the entire Scheduled Castes and Scheduled Tribes are treated as one large class. There is no sub-categorisation among these communities.
  • However, even among the SCs and STs, there are communities which are relatively more backward. Thus, there has been an ongoing demand for allowing sub-categorisation in these communities enabling the relatively backward in these communities to apportion greater benefits.

Constitutional Status of Scheduled Castes

  • Article 366 (24): Scheduled Castes are defined to mean such castes, tribes or parts or groups within such castes, races or tribes as deemed under Article 341 of the Constitution.
  • Article 341(1): President has given the power to notify castes, races or tribes which shall be deemed to be Scheduled Castes for a State or UT. The President will notify the SCs for a State or UT in consultation with the Governor of the State.
  • Article 341(2): Parliament may by law include or exclude any caste, race, or tribe from the list of Scheduled Castes specified in the Presidential notification issued under Article 341(1).
  • Articles 342 and Article 342-A relate to notification of STs and SEBCs respectively and contain provisions similar to Article 341.

Judgement in EV Chinnaiah Case (2004)

  • The SC held that 'Scheduled Castes' (SCs) notified under Article 341 formed one homogenous group and could not be sub-categorised further.
  • Sub-classification would amount to tinkering with the Presidential order issued under Article 341. States have no such power to amend the Presidential order.  
  • Sub-classification amounts to giving preference to a 'miniscule proportion' of the SCs, over other members of the SCs which would be impermissible under Article 14 (Right to Equality).  
  • Indira Sawhney judgement permitted the sub-classification of the Other Backward Classes, but this is not applicable to SCs. 

Salient Features of Davinder Singh Judgement (2024)

Sub-classification and States interference with SC list:

  • In the EV Chinnaiah judgement, the court opined that sub-classification amounts to states tinkering with Presidential List under Article 341. However, in the Davinder Singh Case, the SC (2024) held that sub-classification did not lead to including or excluding any caste through legislation. Thus, did not amount to tinkering with the list.
  • Also, States had the legislative power to create sub-classification as it did not amount to tampering with the Presidential List. This power stemmed from Article 15 and Article 16 of the Constitution.
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Article 14 of the Constitution

  • Article 14 is an amalgamation of two expressions - equality before law and equal protection of laws.
    • Equality before law means absence of special privileges for any individual. However, it does not mean that the same law should apply to everyone, but that the same law should apply to those who are similarly situated. 
    • Equal protection of laws means that laws must be administered equally among equals. This also enjoins the State with power to reasonably classify those who are differently placed.
  • Thus, equality under Article 14 is not 'sameness' but that there must be a parity of treatment under parity of conditions. The substantive equality under the Article calls for equality of opportunities over equality of treatment. 
  • Sub-classification is a facet of equality and law can further classify a class that is already created by law for a limited purpose. The classification should be based on intelligible differentia and rational nexus.
    • Intelligible Differentia means a discernible and understandable distinction. Thus, the distinction should be based on clear criterion or standard.
    • Rational nexus: There should be a clear and rational link between classification criterion and intended outcome or goal of the classification.
  • The test to determine whether sub-classification within a class is justified under Article 14, is whether the class is homogenous or not.

Homogeneity of SCs

  • There is historical and empirical evidence to show that SCs are not a homogenous class.
    • Hardships and backwardness which SCs have suffered historically would differ from category to category.
    • Some communities are included in the Presidential list while the same community has not been included in SCs in other states, highlighting the non-homogenous nature of SCs.
  • The word 'deemed' in Article 341 was not indicative of creation of legal fiction. The intention of this legal fiction created under Article 341 was for the limited purpose of identifying the SCs and differentiating them from other groups. It was not an indicator of homogeneity.

Arguments in favour of sub-classification of SCs

  • Enables Social Justice: As not all SCs have equally benefited from reservation policies; sub-classification would ensure that benefits of affirmative action and policies reach those who are truly in need.
  • State Autonomy: It allows states to address local socio-economic disparities within the SC category, tailoring affirmative action policies to the specific needs of their populations.
  • Alignment with Constitutional Provisions:
    • Article 15(4) of the Constitution of India allows the state to make special provisions for the advancement of socially and educationally backward classes of citizens, as well as for Scheduled Castes and Scheduled Tribes. This includes making provisions for reservations in jobs and educational institutions. 
    • Article 16(4) allows the state to make reservations in favour of backward classes who are inadequately represented in state services. This provision is specifically aimed at ensuring that these classes have adequate representation in government employment.
  • Gives impetus to nation-wide caste census. 

Challenges in sub-classification of SCs

  • Undermining Unity: Sub-classification could lead to further fragmentation and undermine the unity of SCs as a single group, weakening their collective political and social identity.
  • Administrative Challenges: Implementing sub-classification could lead to complex administrative challenges like collection of empirical evidence, potential for disputes over which sub-castes should receive greater or lesser benefits.
  • Potential for Abuse: Sub-classification could be manipulated for political gain, leading to arbitrary or politically motivated decisions. 
  • Ensuring Uniformity: Sub-classification can lead to different criteria and benefits being applied in different states, based on local socio-economic conditions. This could create inconsistencies in how affirmative action is implemented across the country. There is a risk that varying approaches could undermine objectives of reservation policies.

Way Forward

  • Creamy Layer among SCs: States must evolve a policy for identifying creamy layer exceptions even from SCs/STs (Indira Sawhney judgement mandated creamy layers only for OBCs). 
  • Willing giving away of benefits: Within the SCs, certain caste groups were reaping the benefits of reservation more than others. Thus, these caste groups should walk away from special provisions making way for the needy. 
  • Central Guidelines: Establishing broad, uniform guidelines for sub-classification that states can adapt to local conditions may help ensure consistency while allowing for flexibility.

While sub-classification can help tailor affirmative action to better meet the needs of different groups within SCs and STs, it requires careful design and implementation to ensure it enhances, rather than undermines, the overall objectives of reservation policies. 

Reservation in Private Educational Institutions

Context: The issue of extending reservations to Private Higher Educational Institutions (PHEIs) has gained renewed political attention, particularly with the opposition party reiterating its demand in recent times.

Relevance of the Topic:Mains: Debate: Reservation in Private Educational Institutions. 

Legal Framework supporting Reservation in Private Institutions

(a) Constitutional Provisions: Article 15(5) inserted via 93rd Constitutional Amendment Act (2005): Enables the State to make special provisions for the advancement of SCs, STs, and SEBCs (i.e., OBCs) for admissions to educational institutions, including private, aided and unaided, except minority institutions. This provision explicitly allows reservation in private educational institutions.

(b) Judicial Pronouncements:

  • Ashok Kumar Thakur vs Union of India (2008): It upheld 27% OBC reservation in Central Educational Institutions. However, it did not rule on unaided private institutions but recognised the broader legitimacy of affirmative action.
  • Indian Medical Association vs Union of India (2011): It upheld reservation in private unaided professional colleges.
  • Pramati Educational & Cultural Trust vs Union of India (2014): Upheld the validity of Article 15(5) and extended the legality of reservation to unaided private institutions.

These rulings make it clear that there is no legal bar to implementing reservation in private colleges and universities, provided minority institutions are excluded.

Need for Reservation in Private Higher Education Institutions

  • Quantitative Expansion:
    • Rise of Private Universities: In 2024, there are over 500 private universities in India. Over 75% of the HEIs in India are privately managed. 
    • Share of Enrollment: Private universities account for 26% of total higher education enrolment (2021-22). Private unaided colleges account for 45% of total college enrolment. 
  • Quality divide: Public universities are increasingly under-funded, overcrowded, short on faculty with limited learning or job prospects. In contrast, PHEIs offer better infrastructure, classroom sizes, and faculty remuneration, attracting the best and becoming elite enclaves.Skewed representation in Private Institutions: All India Survey of Higher Education (AISHE) 2021–22 shows that the representation of various marginalised communities in private institutions: 
    • SCs: 6.8% (vs ~17% population share)
    • STs: 3.6% (vs ~9%)
    • OBCs: 24.9% (vs ~45–50%)
    • Muslims: 3.8% (vs ~15%)

This indicates a clear under-representation of marginalised communities in private universities and quota-based affirmative action significantly improves social diversity in educational spaces.

Social and Economic Arguments in Favour of Reservation:

  • Breaking the Cycle of ‘Effectively Maintained Inequality’: Sociologist Satish Deshpande argues that elite social groups adapt to maintain their advantage even when the access widens. Privatisation becomes a tool to escape reservation, enabling the elite to recreate exclusivity in high-end institutions.
  • Correcting Structural Discrimination: Marginalised groups face intergenerational exclusion in education. Private institutions often offer sought-after courses (law, management, STEM), and lack of reservation excludes Dalits, Adivasis and OBCs from these tracks. If public jobs and public universities follow reservation policies, leaving private education outside the purview, weakens the overall impact of affirmative action. 
  • Recommendation of Parliament’s Standing Committee: In its 364th Report on the Demand for Grants for the Department of Higher Education, the Parliamentary Standing Committee on Education, Women, Children, Youth, and Sports also recommended a new legislation to implement Article 15(5) as well. 

Way Forward

  • Strengthen Public Education: Increase public funding, fill faculty vacancies, and improve student-teacher ratios and campus infrastructure.
  • Mandate Social Inclusion in Private Sector: Legally mandate private institutions (excluding minority-run ones) to implement quotas for SCs, STs, and OBCs. 
  • Incentivise private-sector universities: Link recognition, accreditation, and tax exemptions to reservation compliance. Robust monitoring mechanism for compliance. 

However, mandating private institutions to implement reservations may interfere with their institutional autonomy. The utmost importance should be given to improve the quality of HEIs and capacity building.  

Reservation for Transgender Community

Context: The reservation demand for transgenders in educational institutions and government jobs is picking up pace across the country.

Relevance of the Topic: Mains: Reservation for Transgenders: Debate, Government Initiatives & Way Forward. 

Issue of Reservation for Transgenders

  • Background of Reservation demand: Since the 2014 NALSA judgment by the Supreme Court, there has been a push for reservations for transgender people in government jobs and education.
    • The demand for reservation arises from the socio-economic and educational backwardness of the transgender community.
    • However, there is ambiguity in the nature of reservation to be provided—whether it should be vertical (separate quota) or horizontal (within existing categories).

Arguments for Vertical Reservation

  • Separate category: Vertical reservation treats transgender people as a distinct socio-economic group, similar to SC, ST, and OBC categories.
    • It further ensures a clear, fixed percentage of seats for transgender individuals across sectors.
  • Uniform Identity: Proponents argue that transgender people face discrimination purely on gender identity, not on caste, hence a separate category is justified.
    • It simplifies the process of implementation by avoiding overlap with caste-based reservations.
  • Legal basis: The NALSA judgment identified transgender people as Socially and Educationally Backward Classes (SEBC), implying eligibility for OBC-like reservations.
    • Madhya Pradesh has already included transgender people in its OBC list following this interpretation.
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Arguments for Horizontal Reservation

  • Addressing Intersectional Discrimination: Horizontal reservation acknowledges that transgender people belong to various caste groups, facing layered forms of discrimination based on both caste and gender identity.
    • Without horizontal reservation, Dalit and Bahujan transgender individuals may remain underrepresented.
  • Existing High Court Rulings: The Karnataka, Madras, and Calcutta High Courts have ruled in favor of horizontal reservations for transgender people.
    • Horizontal quotas ensure representation in each socio-economic category (SC/ST/OBC/General), preventing exclusion of marginalized caste trans individuals.
  • Grassroots Support: Various activists argue that vertical reservation ignores caste realities and perpetuates caste hierarchies by lumping all transgender people into a single category.
    • Horizontal reservation provides equitable access to resources for trans people across different caste identities.

Significant Cases and Rulings in this context

  • NALSA Judgment (2014): Directed governments to treat transgender people as socially and educationally backward classes, eligible for reservation in jobs and education.
    • However, it created ambiguity by not specifying whether reservation should be vertical or horizontal.
  • Madhya Pradesh Government (2023): Included transgender people in the OBC category, aligning with the vertical reservation approach.
  • High Court rulings: Karnataka (Sangama v State of Karnataka), Madras, and Calcutta High Courts have directed State governments to implement horizontal reservation for transgender individuals.
  • Supreme Court (March 2023): Refused to entertain a petition seeking clarification on the type of reservation to be provided, leaving the ambiguity unresolved.

Way Forward

  • Legislative Framework: A comprehensive legislative framework should be developed to provide clarity on the type of reservation—preferably horizontal, given the layered discrimination transgender people face.
  • Intersectionality in Public Policy: Policy-making must adopt an intersectional approach, recognizing the compounded disadvantages faced by Dalit and Bahujan transgender individuals.
  • Awareness and Sensitisation: Government bodies and society must be sensitized to the unique issues faced by transgender people, ensuring better implementation of reservation policies.
  • Inclusive Dialogue: Engage with diverse stakeholders, including transgender activists from marginalized castes, to ensure that reservation policies reflect the needs of the entire community.
  • Uniformity of Policy across States: A national-level directive should be issued to ensure consistency in reservation policies for transgender people across all States.

Status of progress on Horizontal Reservations for Transgender Persons in India:

  • Absence of Central Government Direction:
    • Despite the Supreme Court’s 2014 NALSA judgment recommending affirmative action for transgender persons, there has been no concrete policy from the central government regarding horizontal or vertical reservations.
    • The Transgender Persons (Protection of Rights) Act, 2019 failed to include any provision for reservations, either vertical or horizontal.

Legislative Attempts so far:

  • Rights of Transgender Bill, 2015 (Private Bill):
    • This bill proposed reservations for transgender persons in both public and private sectors. It was rejected in the Lok Sabha.
  • Parliamentary Standing Committee Recommendation (2018):
    • A committee under the Ministry of Social Justice recommended that transgender persons be provided reservations in education and public employment.
  • Transgender Persons (Protection of Rights) Act, 2019 (introduced by the Centre):
    • The Act has no mention of reservations for transgender persons.
    • National Council for Transgender Persons: Established under Transgender Persons (Protection of Rights) Act, 2019.
    • Equal opportunity policy issued in pursuance of Transgender Persons (Protection of Rights) Act, 2019 and Transgender Persons (Protection of Rights) Rules, 2020.

Progress in Various States:

  • Tamil Nadu (2015): The government categorized trans women under the Most Backward Classes (MBC) category, though this policy only applies to trans women and not the entire transgender community.
  • Karnataka (2021): Following the Sangama v. State of Karnataka case, Karnataka became the first state to implement 1% horizontal reservation for transgender persons across all categories (SC/ST/OBC/General).
  • Madhya Pradesh (2023): Transgender persons were included in the OBC category, adopting a vertical reservation model, similar to Tamil Nadu’s earlier approach.

Reservation must not be based on Religion: SC

Context: The Supreme Court of India has recently emphasised that reservations must not be granted solely on religion. 

Relevance of the Topic: Prelims: Constitutional and Legal Framework for Reservations. 

Background: The Calcutta High Court had concluded that religion was the “sole criterion for declaring certain castes among the Muslim community as OBC”. The judgment arose a debate around the issue and prompted a review on how reservations are determined. 

Present Constitutional and Legal Framework: 

  • Article 15(4): Enables the State to make special provisions for the advancement of any socially and educationally backward classes or for the Scheduled Castes and the Scheduled Tribes.
  • Article 16(4): Provides that the State can enact legislation for the reservation of posts in the government sector or jobs in favour of the backward classes of citizens, which the State considers to have not been adequately represented in the services of the State.
  • Indira Sawhney Judgment: The Supreme Court in Indira Sawhney v. The Union of India upheld the constitutionality of reservations for Other Backward Classes (OBScs) in public employment, capping the reservation at 50%. The court emphasised that identification of backwardness should be based on social and educational criteria rather than religion.

Previous rulings in this Context: 

  • MR Balaji case (1962): The SC held that Muslims/Christians/Sikhs are not excluded for the purpose of conferring reservations under Article 15(4) or 16(4).
    • The court further held that it is not unlikely that these communities can be socially backward, so even though caste is considered to be the relevant criteria for determining backwardness in Hindu community, it cannot be made the sole criteria.
  • Indira Sawhney case: The SC held that in certain states, Muslim communities as a whole can be identified as backwards (based on their social and educational conditions). (E.g., Karnataka, Kerala)
  • T Muralidhar Rao vs State of AP, 2004: The State while discharging its constitutional obligation cannot make any distinction between one group of citizens and others on the ground of religion, faith or belief.
  • B Archana Reddy vs State of AP (2005): HC struck down the ordinance for extending the benefits of reservation on the ground that the benefit could not be extended to the whole community without proper identification of social backwardness of Muslims by the Commission.
  • Telangana tried to pass 12% reservation for OBC Muslims based on G Sudhir Commission report. However, this was struck down, since it breached the 50% limit set by Indra Sawhney judgement (1992) and the Central Government denied its inclusion in the Ninth schedule.
reservation for muslim communities in India

Various Committees recommendations in this context:

  • Justice Rajinder Sachar Committee, 2006: The Muslim community was almost as backward as SCs and STs and more backward than non-Muslim OBCs.
  • Justice Ranganath Misra Committee, 2007: It suggested a 15% reservation for minorities, with 10% specifically for Muslims.
  • Executive Order, 2012: The GOI issued an order providing a 4.5% reservation for minorities within the existing 27% OBC quota.

The Supreme Court’s stand reinforces that social and educational backwardness must be the basis for reservations, not religious identity.

Sub-classification among reserved categories

Context: A seven-judge constitution bench of the Supreme Court in the State of Punjab vs Davinder Singh judgement  has held that sub-classification of SC and ST categories is permissible. Also, States have power to create these sub-classifications. Earlier, the Supreme Court in E. V. Chinnaiah vs State of Andhra Pradesh (2004) had ruled that sub-classification was not permissible in the SC category. The Davinder Singh Judgement has overturned the E. V. Chinnaiah judgement.

Present Status - reserved categories

  • Currently, the entire Scheduled Castes and Scheduled Tribes are treated as one large class. There is no sub-categorisation among these communities.
  • However, even among the SCs and STs there are communities which are relatively more backward. Thus, there has been an ongoing demand for allowing sub-categorisation in these communities enabling the relatively backward in these communities to apportion greater benefits.

Constitutional Status of Scheduled Castes

  • Article 366 (24): Scheduled Castes are defined to mean such castes, tribes or parts or groups within such castes, races or tribes as deemed under Article 341 of the Constitution.
  • Article 341(1): President has given the power to notify castes, races or tribes which shall be deemed to be Scheduled Castes for a State or UT. The President will notify the SCs for a State or UT in consultation with the Governor of the State.
  • Article 341(2): Parliament may by law include or exclude any caste, race, or tribe from the list of Scheduled Castes specified in the Presidential notification issued under Article 341(1).
  • Articles 342 and Article 342-A relate to notification of STs and SEBCs respectively and contain provisions similar to Article 341.

Judgement in EV Chinnaiah Case

  • Scheduled Castes form a class by themselves.
  • Sub-classification amounts to tinkering with the Presidential order issued under Article 341. States have no power to deal with State Legislature.
  • Scheduled Castes constitute a class and further classification is not permissible among the SCs. Indira Sawhney judgement permitted the sub-classification of the Other Backward Classes, but this is not applicable to SCs. Sub-classification amounts to giving preference to a 'miniscule proportion' of the SCs, over other members of the SCs which would impermissible under Article 14. 

SALIENT FEATURES OF DAVINDER SINGH JUDGEMENT

Article 14 of the Constitution: 

  • Article 14 is an amalgamation of two expressions - equality before law and equal protection of laws. 
  • Equality before law means absence of special privileges for any individual. However, it does not mean that the same law should apply to everyone, but that the same law should apply to those who are similarly situated. 
  • Equal protection of laws means that laws must be administered equally among equals. This also enjoins the State the with power to reasonably classify those who are differently placed.
  • Thus, equality under Article 14 is not 'sameness' but that there must be a parity of treatment under parity of conditions. The substantive equality under the Article calls for equality of opportunities over equality of treatment.
  • Thus, sub-classification is a facet of equality and law can further classify a class that is already created by law for a limited purpose. The classification should be based on intelligible differentia and rational nexus.
    • Intelligible Differentia means a discernible and understandable distinction. Thus, the distinction should be based on clear criterion or standard.
    • Rational nexus: There should be a clear and rational link between classification criterion and intended outcome or goal of the classification.
  • The test to determine whether sub-classification within a class is justified under Article 14, is whether the class is homogenous or not.

Homogeneity of SCs

  • There are historical and empirical evidence to show that SCs are homogenous. 
  • Some studies such as by AM Shah have highlighted that SCs are not a homogenous class. 
  • Hardships and backwardness which SCs have suffered historically would differ from category to category.
  • Some communities are included in the Presidential list while the same community has not been included in SCs in other states highlighting the none homogenous nature of SCs.
  • The word 'deemed' in Article 341 was not indicative of creation of legal fiction. The intention of this legal fiction created under Article 341 was for limited purpose of identifying the SCs and differentiating them from other groups. It was not indicator of homogeneity.

Sub-classification and States interference with SC list

  • In the EV Chinnaiah judgement, the court opined that sub-classification amounts to states tinkering with Presidential List under Article 341. However, in the Davinder Singh Case, the SC held that sub-classification did not led to including or excluding any caste through legislation. Thus, did not amount to tinkering with the list.
  • Also, States had the legislative power to create sub-classification as it did not amount to tampering with the Presidential List. This power stemmed from Article 15 and Article 16 of the Constitution.

Criteria for Sub-classification

  • Article 15(4) provides that the beneficiary class for the purpose of the provision must be socially and educational backward. The social and educational backwardness should not be seen as mutually exclusive but together.
  • The purpose of this Article is to ensure substantive equality by ameliorating social backwardness. Thus, the states need to prove varying degrees of backwardness and inadequate representation within the group based on empirical evidence.
  • Although sub-classification with the SC category was permitted, however, it did not meant that that seats should be allocated for each caste group. Classes exhibiting similar level of backwardness, should be categorised together. 

Creamy Layer among SCs

  • State must evolve a policy for identifying creamy layer exception even from SCs/STs (Indira Sawhney judgement mandated creamy layers only for OBCs). 
  • Within the SCs, certain caste groups were reaping the benefits of reservation more than others. Thus, these caste groups should that they should walk away from special provisions making way for the needy.

Maharashtra Assembly passes bill for providing 10% reservation for Maratha Community

Constitutional background of Reservation in India

  • Article 15(4) and Article 15(5) provide for reservation to Socially and Educationally Backward classes and SC/STs in admission to educationally institutions.
  • Article 15(6) provides for reservation to economically weaker sections of society in admission to educational institutions, added through 103rd constitutional amendment.
  • Article 16(4) provides for reservation to backward classes and SC/STs in public employment.
  • Article 16(6) provides for reservation to economically weaker sections in public employment.
  • Article 335 provides for enabling provision of reservation for Scheduled Castes and Scheduled Tribes to services and posts under the union and the state. However, the efficiency of administration should be maintained.
  • The 77th amendment in 1995 provided for reservation in promotion of any services under the state for SC/STs.

Judicial take on OBC Reservations

  • V.P. Singh government in 1990, declared reservations of 27% government jobs for the OBCs. In the Mandal case or Indra Sawhney case, the Supreme Court upheld the OBC reservation, but imposed certain conditions like ceiling limit of 50% on reservation quota, no reservation in promotion, etc. The court accepted that the Caste continues to be marker for identifying socially and educational backwardness.
  • Similarly, in Janhit Abhiyan Case, Supreme Court upheld the EWS reservation granted through the 103rd constitutional amendment.

Maratha Reservation issue

  • 1997: First major Maratha agitation for reservation in government jobs and educational institutions was organised by the Maratha Mahasangh and the Maratha Seva Sangh. 
  • 2014: Maharashtra government brought 16% reservation for Marathas in government jobs and education. However, the High court put a stay on it and this stay was subsequently upheld by the Supreme Court.
  • 2017: The Maharashtra government then set up Gaikwad Commission to study the social, financial and educational status of Maratha community. Based on commission's recommendation, Socially and Educationally Backward Class Act, 2018 was enacted to provide 16% reservation to Marathas in education and government jobs.
  • 2021:Supreme Court holds Maratha Reservation unconstitutional and strikes down the law. The court opined that the government failed to provide sufficient data to justify exceeding the 50% quota ceiling. But the Supreme Court allowed the State Government to collect empirical data for showing the backwardness of the community.
    • Exceeds the 50% ceiling limit imposed on reservations by Indra Sawhney judgement.
    • Gaekwad Commission report lacks reliable, scientific and adequate data to justify the backwardness of Marathas.
    • The Act created a special class of reservation for Marathas outside the OBC class and violates Article 14, 16 and 19 of the Constitution by bestowing them with special benefits.
    • The Act was passed without complying with procedural requirements mandated by 102nd Constitution (Amendment) Act, 2018.
  • 2023: The State government set up Justice Shukre panel to conduct large scale survey of the community.
  • Salient Features of Shukre Panel's report:
    • Marathas accounted for 28% of the population of the State, of which 84% of them are backward. So, such a large scale of backward community needs to be provided with separate reservation bracket.
    • It gave reasons like decline in agricultural income, partitions in land holdings, extreme poverty as reasons for Maratha's backwardness.
    • 94% of farmers who died by suicide in the state belonged to Maratha community.
    • Inadequate representation of the community in all the sectors of public service, which has kept them excluded from the mainstream.

Issues/Concerns with providing reservations to Marathas

  • Providing community specific reservations will flare similar demands in other provinces.
  • Reservations in Maharashtra will overshoot the 50% limit, hence compromise the principle of superiority of merit.
  • Discriminates other communities by giving Marathas a special privilege.
  • Reinforces the grip of caste-based politics and mobilisation.
  • Against the constitutional structure of providing reservations for SCs, STs, OBC and EBC.
  • Demand for reservations among agrarian communities is due to following reasons:
    • Low income in agricultural households
    • Feeling of relative deprivation
    • Feeling of losing of dominance in rural areas as communities lower in social hierarchy such as SCs have gained economically and politically from the reservations.
    • Low participation in modern economy sectors like IT, Finance, Banking etc.

Thus, the government should be focusing on modernizing agriculture, education and opportunities for these communities.

Conclusion:

So, this time the State government has backed up its Maratha reservation law with broader set of empirical data. But it is now for the Judiciary to decide whether the law stands the test of Constitutionality.

Happening Haryana slips as investments drop amid worries over law reserving jobs for locals

Context: Once one of the most sought-after investment destinations, particularly for skill driven manufacturing sectors such as automobiles, Haryana seems to have lost some of its sheen with its share of new investment projects in the country tripping to a six year low of 1.06% in 2022­23, down sharply from almost 3% in the year before.

Highlights 

  • Total investment outlays announced in the State fell 30% last year to ₹39,000­odd crore from nearly ₹56,000 crore in 2021­22.
  • This pushed Haryana from the ninth best State in terms of new investment projects to the 13th rank in 2022­23. 
  • Manufacturing investments declined 60% to just about ₹9,500 crore.
image 2
  • Maruti Suzuki — one of the State’s largest legacy investors, which announced a ₹18,000­crore project, Haryana’s largest investment in 2021­22 — is now eyeing a ₹24,000­crore plant that will come up elsewhere.
  • Compared to 2021­22, when manufacturing, industrial parks, roadways and realty projects dominated the State’s largest investments, realty projects dominate the outlays announced in 2022­23.

The decline in fresh projects in the State coincides with its enactment of a law in early 2022 that reserved 75% of private sector jobs with monthly salaries up to ₹30,000 for local people. The law has been kept in abeyance after being challenged judicially, but the suspense over its implementation remains a worry for investors.

HARYANA’S LOCAL RESERVATION LAW

Haryana government passed a law reserving 75% of private sector jobs for residents of the state. This raised a debate on such sons of soil policies undertaken by state governments like Haryana and Andhra Pradesh.

Haryana Employment of Local Candidates Act 2020

The Act requires private sector employers to reserve 75% of job posts that offer a salary of less than Rs 30,000 for individuals who are domiciled in Haryana. It is applicable to all private companies, societies, partnership firms, trusts, any person employing ten or more persons in Haryana, or any other entity as may be notified by the Government.

Potential Benefits

• Provides employment opportunities to the locals and reduces regional inequalities.

• Reduces the friction between local and Migrant labour and helps in managing labour unrest.

• Since migration of labour is more often seasonal, the law can lower the dependence on migrant labour and reduces absenteeism.

Problems

  • Drive away investments: Mandatory quotas for jobs and powers for officials to slap penalties on companies for violations may drive away competitive firms who will be wary of new inspector raj and the impact on productivity.
  • Barrier to migration: Poses risk of obstructing free flow of labour from labour surplus states to labour shortage states, which is essential to reap the benefits of Demographic dividend.
  • Legal Implications: Violation of Art 14, Art 16 and Art 19(a) guaranteed by the Indian Constitution. In a landmark Pradeep Jain Case, the Supreme Court has raised concerns that such policies may lead to Economic and Social Fragmentation of India.
  • Political Implications: Rise of strong Sons-of-soil movement even in other states and thus end up affecting the spirit of Cooperative Federalism.
  • Increased Automation: Such affirmative actions in private industry might encourage firms to increase automation in production process which reduces employment generation potential of private firms.
  • Social Implications: In a multilinguistic society such as India, restricted work-related migration stifles interaction of different languages and cultures and helps in thriving regionalist tendencies.
  • Unsustainable solution: Though such reservations provide temporary benefits to the local community in terms of assured employment, it will not help in addressing the basic issues that are responsible for low employment growth.

Hence, States need to abstain from such inward- oriented and parochial policies, adopt spirit of cooperative federalism and work in a coordinated and synergistic manner to address the root cause- Lack of employment opportunities.

Karnataka notifies 10% EWS quota on eve of announcement of poll schedule

Context: 

  • Days after scrapping the 2B Category for Muslims under the OBC quota and on the eve of the announcement of the Assembly elections, the Karnataka government notified the Economically Weaker Section (EWS) category to provide 10% reservation in education and employment.
  • Muslims have been included under this category as per the Cabinet decision taken last week. The order issued on March 28, the day before the model code of conduct came into force, stated that those castes that do not enjoy reservation status provided to the Scheduled Castes and Scheduled Tribes and are not in the list of backward classes and communities transferred to the EWS reservation from the backward classes will be eligible for 10% reservation. The five communities of Brahmins, Arya Vysyas, Mudaliars, Jains, and Nagarathas have been identified to benefit from the EWS reservation in Karnataka. Muslims are the new addition.

Disclaimer: In order to understand the topic as controversial as reservation, We have to wear the veil of ignorance.

The veil of ignorance is a thought experiment proposed by philosopher John Rawls to help individuals think about justice and fairness in society. It asks individuals to imagine that they are behind a veil of ignorance, where they do not know their social status, class, race, gender, or other personal characteristics.
In the case of reservations, the veil of ignorance could help individuals consider the issue from a neutral standpoint, without being influenced by their own personal experiences or biases. By doing so, individuals can think about the issue of reservations solely based on principles of justice and fairness, rather than their own interests or identities.
Wearing the veil of ignorance can help individuals understand the perspectives of both supporters and opponents of reservations, and can help promote a more rational and balanced discussion around the issue. 

Why do we need to cover this? 

  • The debate around reservation is centered on the practice of providing preferential treatment to individuals or groups who have historically faced social, economic, and educational disadvantages. In many countries, including India, the United States, and South Africa, reservations are implemented in education, employment, and political representation.
  • On one hand, supporters of reservations argue that they are necessary to correct historical injustices and provide opportunities for marginalized communities. They argue that without affirmative action programs, members of disadvantaged groups would continue to be excluded from positions of power and influence.
  • On the other hand, opponents of reservations argue that they are discriminatory and violate the principle of meritocracy. They argue that reservations create a system where people are chosen based on their identity rather than their abilities, leading to inefficiencies and lowering the overall quality of institutions.
  • Additionally, there are debates around the efficacy of reservations in achieving their intended goals. Some argue that while reservations may provide temporary relief, they do not address the root causes of social and economic inequality and may even perpetuate the marginalization of certain groups.

Overall, the debate around reservation is complex and multifaceted, with both supporters and opponents presenting valid arguments.

Apart from this, the syllabus of GS Paper II clearly expects us to has a clear understanding of this debate: 

Syllabus: 

General Studies- II: Governance, Constitution, Polity, Social Justice and International relations.

  • Indian Constitution—historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

Hence, we will: 

  • What is reservation? 
  • Constitutional Provisions regarding Reservation 
  • What are the recent debates regarding reservation? 
  • Issues associated with reservation in India:
  • Way Forward

What is reservation? 

  • It is a form of affirmative action whereby a percentage of seats are reserved in the government service and educational institutions for the socially and educationally backward communities and the Scheduled Castes and Tribes who are inadequately represented in these services and institutions.

Constitutional Provisions regarding Reservation 

  • Article 15 (4) allows the State to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. This provision was extended to admission in educational institutions by 93rd Amendment Act, 2006 (except minority educational institutions) 
  • Article 16 (4) allows State to make 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. 
  • Article 16(4A), empowers state to make provisions for reservation in matters of promotion to SC/ST employees. 
  • Article 46 states that the State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. 
  • Article 243D provides reservation of seats for SCs and STs in every Panchayat. 
  • Article 243T provides reservation of seats for SCs and STs in every Municipality. 
  • Article 330 states that seats shall be reserved in the Lok Sabha for the Scheduled Caste and Scheduled Tribes. 
  • Article 332 of the Constitution of India provides for reservation of seats for the Scheduled Castes and the Scheduled Tribes in the Legislative Assemblies of the States.

Reservation in India is a complex and controversial issue. While it was introduced as a measure to address historical and structural inequalities, it has also been criticized for creating new forms of inequality and perpetuating caste-based divisions.

What are the recent debates regarding reservation? 

  • Sub categorization of OBC: The idea is to create sub-categories within the larger group of OBCs for the purpose of reservation. OBCs are granted 27% reservation in jobs and education under the central government. This has been a legal debate for other reservation categories too: in September last year, a Constitution Bench of the Supreme Court reopened the debate on sub-categorisation of Scheduled Castes and Scheduled Tribes for reservations.
  • Dominant castes demanding reservation: Marathas, Patels, Jats, Kapus and others are asking for reservations today, preferably through their recognition as Other Backward Classes. This demand reflects the challenges they are facing on the job market.
  • Reservation to Muslims and Christians: Currently, the constitutional right to reservations in jobs and education as a member of the SC community is extended only to people from Hindu, Sikh or Buddhist faiths, in accordance with the Constitution (Scheduled Castes) Order, 1950.
  • Local reservation in private sector: Haryana State Employment of Local Candidates Act, 2020 was passed reserving 75% of private sector jobs for people of the state.

Issues associated with reservation in India:

  1. Debate around meritocracy: One of the main arguments against reservation is that it goes against the principle of meritocracy, which is the idea that individuals should be rewarded based on their abilities and hard work, rather than their social background. Critics argue that reservation policies favor candidates from certain castes or communities, regardless of their abilities or qualifications, and therefore undermine the concept of meritocracy.
  2. Limited impact: While reservation has been in place for several decades, it has not been able to fully address the issue of caste-based discrimination and inequality. Many argue that it has only benefited a small section of the population, leaving the majority of Dalits and other marginalized groups outside its purview.
  3. Backlash from dominant castes: Reservation has often been met with resistance from dominant castes, who see it as a threat to their own interests and privileges. This has led to tensions and conflicts between different caste groups, and in some cases, even violence.
  4. Political manipulation: Reservation policies have been used by political parties as a tool to gain votes and maintain power. This has led to the creation of new caste-based political alliances and the use of reservation quotas as a bargaining chip in electoral politics.
  5. Inadequate implementation: Despite the existence of reservation policies, many institutions and organizations continue to discriminate against marginalized groups. The implementation of reservation policies has been uneven and often marred by corruption and inefficiency, which has limited their impact.

Way Forward:

Improving the reservation system in India requires a multi-pronged approach that addresses its various shortcomings. Here are some ways in which the reservation system in India could be improved:

  1. Ensure effective implementation: One of the biggest challenges with the reservation system in India is the lack of effective implementation. There is a need to ensure that reservation policies are implemented in a transparent and efficient manner, and that benefits reach the intended beneficiaries.
  2. Expand the scope of reservation: Reservation policies could be expanded to include other marginalized groups such as economically weaker sections, transgender individuals, and people with disabilities, who face discrimination and exclusion.
  3. Address the issue of creamy layer: The creamy layer refers to the affluent sections within reserved categories who benefit from reservation policies and may not necessarily require them. There is a need to exclude the creamy layer from reservation benefits to ensure that the benefits reach the most disadvantaged sections.
  4. Encourage merit-based affirmative action: Reservation policies could be supplemented by other measures that promote merit-based affirmative action. For example, institutions could adopt diversity targets, scholarships, and mentorship programs to support underprivileged students.
  5. Focus on quality education: Improving the quality of education in marginalized communities is critical to reducing the dependence on reservation policies. Investment in quality education infrastructure, teacher training, and curriculum development could go a long way in promoting equality and social mobility.
  6. Promote social awareness and dialogue: Creating a social awareness and dialogue around the issues of caste and reservation is important to promote greater understanding and acceptance of the need for affirmative action policies. This could be done through public education campaigns, media outreach, and community engagement programs.

Overall, reservation in India is a complex issue that needs to be approached with nuance and sensitivity. While it has helped to address some forms of inequality, it has also created new challenges that need to be addressed.

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