FUNDAMENTAL RIGHTS AND RESERVATION

POLICY

CONSTITUTION I

Submitted by:

ADITYA TIWARI

2013008

Submitted to:

Dr. Nageshwar Rao

SEMESTER V

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

Visakhapatnam

OCTOBER 2015

1

ContentsIntroduction....................................................................................................................................4

Concept of Equality........................................................................................................................5

Fundamental Rights and Reservation.............................................................................................6

Clause 3, Article 15.........................................................................................................................7

Clause 4, Article 15.........................................................................................................................8

Backward Classes............................................................................................................................9

Quantum of Reservation..............................................................................................................10

Clause 4, Article 16.......................................................................................................................11

Reservation in present scenario...................................................................................................12

Conclusion....................................................................................................................................14

Bibliography..................................................................................................................................15

2

ACKNOWLEDGEMENTI have endeavoured to attempt this project. However, it would not have been feasible

without the valuable support and guidance of Dr. Nageshwar Rao. I would like to extend

my sincere thanks to him.

I am also highly indebted to Damodaram Sanjivayya National Law University Library

Staff, for their patient co-operation as well as for providing necessary information & also

for their support in completing this project.

My thanks and appreciations also go to my classmates who gave their valuable insight

and helping in developing this project.

3

Introduction

Observers of Indian social reality are sometimes at a loss to understand how the Indian

Constitution emphasises equality and at the same time provides for reservation in education and

employment and in representative bodies. This seeming dichotomy has often been resolved by

the judiciary – and when it failed to do so, by Parliament – in favour of substantive equality as

originally envisaged by the Constitution-makers.

Clause 1 of the article 15 prohibits the state from discriminating against citizens on grounds only

of religion race, sex, caste, place of birth or any of them. The clause 1 of article 16 of Indian

constitution provides for the equality of opportunity for all citizens in matters relating to

employment or appointment to any office under the state. On the other hand clause 4 and 5 of

article 15 and clause 4, 4-A, 4-B of article 16 provides for making the special provisions for the

advancement of ST, SC and OBCs. These clauses are meant to provide reservations.

Article 14 is the general equality provision, interpreted to include the principle of equal treatment

of equals and unequal treatment of unequals. In itself, Article 14 must be considered the source

of legitimacy for reservation for Dalits and the Backward Classes, who cannot otherwise

compete with the advantaged sections of society on equal terms because of historical disabilities.

This was the consideration of the Constitution-makers, who did not see the need for Article 15(4)

or Article 15(5), which provide for reservation in educational institutions. These clauses were

inserted in 1951 and 2006, respectively, through constitutional amendments.

4

Concept of EqualityEquality refers to a situation of oneness or uniformity. Equality has various dimensions such as

social equality, economic equality, political equality etc. Equality helps in the sustainable

development of society.

The popular meaning of the term equality is that all men are equal and all should be entitled to

equal treatment. The concept of equality was initially recognized in 1789 by the national

assembly of France which made a declaration stating "Men are born and always continue to be

free and equal in respect of their rights."

Indian constitution deals with the various dimensions of equality. One of the objectives of Indian

constitution is to promote equality of status and opportunity which is specifically mentioned in

the Indian preamble. The provisions in the constitution like Article 14, 15 and 16 clearly indicate

that Indian constitution emphasizes various dimensions of equality.

In India, the concept of equality is mainly referred to in the context of the disparities created by

the caste system.  Of course, social inequality is manifested in a number of ways, The rich and

the poor, landowners and landless labourers, capitalists and workers, educated and uneducated,

employed and unemployed, men and women, modern and backward.  In addition, there always

are 'internal' inequalities among the rich, as also among the workers at various strata and the

farmers at various levels.  For example, in terms of the Supreme Court's judgment, there is a

'creamy layer' among the OBC's also.  Further, not all BC castes are equal nor are all OBC's on

the same level or in the same class.

This transplant, intended to eradicate the stringency of the caste system, its inequality, injustice

does not appear to have taken root yet. As a result, everyone has his own version of 'removal of

inequality' to suit his own convenience.

The issue of equality in a society with a class-based hierarchy and that in a society with

multiplicity/inequality among various castes are qualitatively different from each other. Manu

gave only the essentials of the four Varnas. 

The policy of reservation was put forward with a view to eliminating the caste-based inequalities

in our society. But this criterion can apply only to economic disparities. It has not been able to

remove cultural inequalities.

5

The teachings of all religions, the constitutions all States and the policies of almost all political

parties embrace the concept of equality'; in spite of which this inequality has not been removed. 

This should not construe to mean that the hatred, the disparity are curses of the Human society. 

It only means that the struggle for 'equality' is indeed very long and is not as easy as it appears to

be.  If the 'progressive Brahmins', the 'Dalit rebels' and the 'communist revolutionaries' come to

realise this much, the tendency to make political capital of the inequalities among castes will be

checked.

Fundamental Rights and ReservationThe mentioning of equal opportunities in employment and the reservations in the chapter of

fundamental rights in the constitution of India created lot of confusions in judiciary, legislature

and even for the executive wing. But still the opportunistic politics avoided the detailed

discussion on the wish of the constitution regarding the reservations and the equal opportunities

in education and employment.

Many believe that our constitution makers thought the reservations in negative sense. As there

were lot of discriminations based on castes one born, they believed that it would be justified to

extend the same for a period, not more than 10 years. Sardar Patel one of the chief architects of

the Indian constitution said that "that the object of the House should be, as soon as possible and

as rapidly as possible to drop these classifications and bring all to a level of equality"

The Indian constitution grants its citizens certain fundamental rights which are guaranteed by the

constitution. Unlike any other legal rights, these fundamental rights are protected and enforced

by the constitution. The fundamental rights cannot be denied even by the government except in

some special cases

The constitution speaks of equal opportunities in employment and education to all the citizen of

India without the discriminations on any ground. The related articles of the constitution read as

follow which are self explanatory:

Article 16(1): There shall be equality of opportunity for all citizens in matters relating to

employment or appointment to any office under the state

Article 16(2) No citizen shall on grounds only of religion, race, caste, sex, descent, place of birth,

resident or any of them be ineligible for or discriminated against in any respect of any

employment or office under the State.

6

Article 15(1): "The state shall not discriminate against any citizen on grounds only of religion,

race, caste, sex, place of birth, or any of them"

Article 29[2]: No citizen shall be denied admission into any educational institution maintained

by the State or receiving aid out of the State funds on ground only of religion, race, caste,

language, or any of them.

In all these articles, the makers of our constitution speak about the equal opportunities and

eradicating the discrimination on various grounds. The equal opportunities can be brought by

increasing the competitiveness of the underprivileged citizens. Reservations in jobs will not

create equal opportunities according to many scholars. Reservations are meant for the outcomes

in employment opportunities, and not for the opportunities. Equal opportunities can be provided

only through quality primary and secondary education which may also include special coaching

and adequate assistance for any inadequately represented population groups.

There is a post reserved for some ‘community’ where there no candidate from that community

applied. These seats were kept as backlogs though there the availability of suitable candidate is

present from some other community. Don’t you think the employment opportunity is denied just

because the second person is not from that reserved community? Isn’t it discrimination on the

grounds of whatever mentioned in the constitution?

The wish of the constitution in bringing about the reservation has a wide meaning. In India we

have seen a lot of discriminations on various grounds. There was lot of evil practices in our

society. That too, we Indians have treated some people from particular communities as

untouchable and saw as non human beings. There was a great inequality in our society. To

support such people and give some opportunities for them and to bring them to the front row, the

constitution wished for reservation. It also tells the reservation will not be against the

fundamental rights mentioned above. The article about the reservations is as follow:

Article 16(4) "Nothing in this article shall prevent the State from making any provision for the

reservation of posts in favour of any backward class of citizens, which in the opinion of state is

not adequately represented in the services under the state"

Clause 3, Article 15Clause 3 enact that nothing in article 15 prevent the state from making any special provision for

women and children. From the reading clause (1), (2) and (3) together follows that while

7

discrimination on the grounds of sex is impermissible, special provision for women and children

are permissible. Thus it is no violation of article 15 if institutions are setup by the state

exclusively for women or places are reserved for women at public entertainments or in public

conveyances. The special treatment to women means “that no less favourable treatment is to be

given to women on gender based criterion which would favour the opposite sex and that women

will not be deliberately selected for less favourable treatment because of their sex. In the case of

Air India Cabin Crew association v Yeshaswinee Merchant1, the decision of excise authorities

to prefer men over women in granting licenses for opening liquor shops was struck down as

falling within the prohibition of Article 15(1) and not save by Article 15(3).

In Govt. Of A.P. v P.B. Vijaykumar2, the Court gave a new dimension to Article 15(3) by

holding that reservation for women in State employment was also permissible under that

provision notwithstanding separate provision in this regard under Article 16. In this case an A.P.

Government rule which provide for:

i. Preference for women in jobs better suited for them;

ii. Preference upto 30% for women in jobs for which they are equally suited with man; and

iii. Direct recruitment to posts reserved exclusively for women was upheld

The court held that Article 15(3) was broad enough to cover any special provision for

women including reservation in jobs. Article 16 did not come in the way of such

reservation. The two Article must be harmoniously be construed. Both of them aim at

egalitarian society and authorise special provision for the upliftment of its weaker

sections. Women are historically and otherwise a weaker section of our society for whose

upliftment Article 15(3) is made, which should be given widest possible interpretation

and application subject to the condition that reservation should not exceed 50% limit as

laid down in indra sawhney case.

In yusuf aziz v/s state of bombay3, section 497 of IPCwhich only punishes man for adultery and

exempts woman from punishment even though she may be equally guilty as an abettor was held

to be valid since classification was not based on the grounds of sex alone

1 (2003) 6 SCC 277, 302.2 AIR 1995 SC 1648.3 AIR 1954 SC 321

8

In Permit Singh V/s state of Punjab4, the petitioner was elected for the post of panch for

reserved seats of SC (women). The petitioner challenged the election of respondent no. 5 as

sarpanch on the grounds that she was not elegible contest election for sarpanch which is reserved

for SC and not SC (omen) because respondent as elected as panch for gram panchyat only

against reserved seats for scheduled castes (omen). The court, however upheld her election. The

court said that if a seat is reserved for SC and ST than both men and women belonging to SC and

St can fight election.

In salil bali v/s UOI, the supreme court regarding the provisions of juvenile justice act fixing 18

years as upper age limit for treating person as juveniles held it to be constitutionally valid

because the constitution enables thye government to make special provision for children and

women.

Clause 4, Article 15Clause 4 was added by the constitution (first amendment) Act, 1951, as a result of the decision of

the supreme court in State of madras v Champakam Dorairajan5. In that case the court struck

down the communal G.O. of the madras govt. which, with the object of helping the backward

classes, had fixed the proportion of students of each community that could be admitted into the

state medical and engineering colleges. Although the directive principles of state policy

embodied in Article 46 of the constitution lays down that the state should promote people and

protect them from social injustice, the court held that “the directive principles of state policy

have to conform to and run as subsidiary to the chapter of fundamental rights”. Overruling that

interpretation, clause (4) enables the state to make special provisions for the advancement of

socially and educationally backward classes of citizens or for the scheduled Castes and

Scheduled Tribes. Such provision include reservation and quotas and can be made in the exercise

of executive powers without any legislative support.

In Union of India v. Rakesh Kumar6, the courts have discussed various other types of affirmative

action measures, namely, proportionate representation, adequate representation and

compensatory discrimination. Explaining the difference it was held that reservation of seats

under Article 15(4) and Article 16(4) for SEBCs is an example of proportionate representation.

4 AIR2009 P&H 75 AIR 1951 SC 2266 (2010) 4SCC 50: AIR 2010 SC 3244

9

Principle of adequate representation is adopted when it is found that a particular community is

under represented and measures are taken to achieve the desired level of representation.

Reservation of one third seats for women in panchayats is an example of adequate representation

whereas reservation of 50 percent for Schedule Tribes (STs) in panchayats in scheduled areas is

an example of compensatory discrimination.

The criterion for determining backwardness should be social circumstances and education

similar to the backwardness from which the SCs and STs suffered.7 In P. Rajendran v. State of

Madras8fixation of district wise quota on the ratio of the district population of the total State

population, for admission of the state medical colleges is discriminatory. The object in selecting

the candidates for admission is to get the best talent but this purpose cannot be achieved by

allocation of seats district wise as better qualified candidate from one district maybe rejected,

while less qualified candidate from other district may be admitted. If classification was based

solely based on the caste of the citizens, it may be open to objections9.

Backward ClassesAlthough Article 16(4) does not qualify ‘backward class of citizens ‘, as does Article 15(4), by

the word ‘socially and educationally’, the problem of determini9ng such classes is similar under

both the provisions. So far as the scheduled castes and the scheduled tribes are concerned they

are defined in the definitional Article 366 under clause (24) and (25) respectively. The

constitution, gives no definition of the backward classes. Article 340, however, contemplates

appointment of a commission to investigate the conditions of ‘socially and educationally

backward classes’ and such other matters as may be referred to the commission by the president.

The president has, in fact exercised his power under this provision twice. First in 1953 under the

chairmanship of Kaka Kalekar and the second in 1978 under the chairmanship of B.P. Mandal.

While determining the backwardness, no universally agreed formula has yet been found. As a

matter of fact each state has been experimenting with different test influenced by social and

political considerations as well as judicial decisions. The court review state decisions and

7 State of A.P. v. P. Sagar, AIR 1968 SC 13798 AIR 1968 SC 10129 State of A.P. v. U.S.V. Balram (1972) 1 SCC 660

10

arrangements in this regard to ascertain if proper criteria for determining the backward classes

have been adopted

The question for determining the criteria for backward classes was raised in many cases. Once

again the question was raised in Indra Sawhney v Union of India 10(the mandal commission

case). It may be remembered that this was a case on article 16(4) and not on 15(4). In that case

the court was asked to pronounce on the constitutional validity of two office memoranda of the

central govt. One of them, which was initially brought before the court, was issued on 13 th

August, 1990. Implementing partially the mandal commission report, it was reserved 27%

vacancies in civil posts and services under the govt of India to be filled by direct recruitment

from the socially and educationally backward classes (SEBCs). Before the court could decide the

validity of this memorandum the other memorandum was issued on 25 th September, 1991. It

provided for preference to the poorer sections of SEBCs in the respect of 27% reservation made

by the first memorandum and also made additional reservation of 10% vacancies for ‘other

economically backward sections of the people’ who were not covered by any existing schemes of

phase the caste and communities which are common to both the lists in the report of the mandal

commission and the state govt’s list. By a six to three majority the court upheld that the first

memorandum but invalidated the addition of 10% by the second.

Following the court’s decisions the centre and the states have appointed backward classes

commissions for constant revision of such classes and for the exclusion of creamy layer from

amongst them. Unreasonably high standard for determining the creamy layer have been

invalidated and wherever any govt has failed to implement the requirement of appointing a

commission and exclusion of creamy layer it gas issued necessary directions compelling them to

do so.11

Quantum of ReservationOn the question of quantum of reservation also the mandal commission case seems to be settling

the issue. In M.R. Balaji v State of Mysore, where the validity of a Mysore govt Order resercing

68% of the seats in the engineering and medical colleges and other technical institutions in

10 AIR 1993 SC 47711 Indra Sawhney v Union of India

11

favour of backward classes including the scheduled Castes and Scheduled Tribes was

challenged, the court held:

“A special provision contemplated by Article 15(4) like reservation of post and

appointments contemplated by Article 16(4) must be within reasonable limits. ....In this matter

again, we are reluctant to say definitely what would be a proper provision to make. Speaking

generally and in a broad way, a special provision should be less than 50%; how much less than

50% would depend upon the relevant prevailing circumstances in each case.”

Reservation of 68% of seats in that case was found by the court plainly inconsistent with Article

15(4).

In Jagdish Saran v Union of India12, a rule reserving 70% of the seats in the post-graduate

medical courses to Delhi University medical graduates and keeping 30% open to all, including

the Delhi University graduates, was challenged by a medical graduate from Madras University as

violating Articles 14 and 15. Though the rule was invalidated in view of imperfect, scanty,

fragmentary and unsatisfactory materials, Krishna Iyer, J., explained that:

(i) Where the aspiring candidates are not an educationally backward class, institution-wise

segregation and or reservation has no place in Article 15

(ii) Equality is not negated or neglected where special provisions are made with the larger

goal of the disabled getting over their disablement consistently with the general good and

individual spirit

(iii) Exceptional circumstances cannot justify making of reservations as a matter of course in

every University and in every course

(iv) The quantum of reservation should not be excessive or societally injurious, measured by

the overall competency of the end product, viz., degree holders

(v) A host of variables influence the level of qualification of the reservation and one of the

factors is that higher the level of the speciality the lesser the role of reservation

(vi) The burden is on the party who seeks to justify the ex-facie deviation from equality.

Speaking generally Krishnan Iyer, j. asserted that unless there is vital nexus with equal

opportunity, broad validation of the University-based reservation cannot be built on the vague

12 AIR 1980 SC 820

12

ground that all universities are practicing it, or that medical graduates resorted to hunger strike

to press for higher percentage of reservation class.

Clause 4, Article 16

Article 16(4) of the Indian Constitution states that “Nothing in this article shall prevent the State

from making any provision for the reservation of appointments or posts in favour of any

backward class of citizens which, in the opinion of the State, is not adequately represented in the

services under the State.” Article 16(4) provides for reservation for Backward Classes in cases of

inadequate representation in public employment. Article 16(4) is enacted as a remedy for the past

historical discriminations against a social class. The object in enacting the enabling provisions

like Articles 16(4), 16(4-A) and 16(4-B) is that the State is empowered to identify and recognize

the compelling interests. If the State has quantifiable data to show backwardness and inadequacy

then the State can make reservations in promotions keeping in mind maintenance of efficiency

which is held to be a constitutional limitation on the discretion of the State in making reservation

as indicated by Article 335. 

Our Fundamental Rights are generally called as negative rights because they limit the

power of the State to exercise over its citizens and thus the citizens gets a upper hand, and the

State cannot interfere with any of the rights of the citizens as mentioned under part III of the

Indian Constitution. If we look into the debate on negative rights and positive rights, we find

that, negative rights are considered to be those rights which oblige others to refrain from

interfering with someone's attempt to do something and positive rights are those which impose a

moral obligation on a person to do something for someone. Now, if we take Article 16(4) into

consideration, it comes within the purview of Part III of the Indian Constitution and so it must be

considered to be negative right. But a bare reading of the text clearly shows that it empowers the

State to make provisions for the backward classes of the State. Thus, if we follow the debate on

negative rights and positive rights, then it is quite clear that, though Article 16(4) falls within

Part III of the Indian Constitution, it cannot be called as a negative right but it’s a positive right.

The scope of Article 16(4) was discussed in the case of Indira Sawhney v. U.O.I13 and it

was held that “Article 16(4) expressly permits the State to make any provision for the reservation

13 AIR 1993 SC 477

13

of appointments or posts in favour of any backward class of citizens which in the opinion of the

State are not adequately represented in the services under the State. As the power conferred on

the State under this Clause (4) is to be exercised only if 'in the opinion of the State' that there is

no adequate representation in the services under the State.

In State of Kerala v. N.M. Thomas14the relation between article 16(1) and Article 16(4) and also

between Article 14, 15 and 16 was considered. The question was whether 16(1) protected the

exemption of lower division clerks belonging to SCs and the STs from passing the special test

for promotion as upper division clerks and the filling up of 34 out of 51 vacancies of upper

division clerks by promoting lower division clerks from these groups in preference to those who

had passed the tests. Hence, the question arose that whether Article 16(1) permits such

preference on the basis of rule of reasonable classification or whether Article 16(4) is an

exception to Article 16(1) can be curtailed, and also whether Article 16(4) exhausts the equality

of opportunity which can be made available to the members of the backward classes of citizen.

The majority of judges held these exemptions and promotions valid.

In Akhil Bhartia Sohit Karamchari Sangh (Railway) v. Union of India15, following the decision

in the N.M. Thomas’s case, it washeld that under Article 16(1), the state may classify groups or

classes based on intelligible differentia. The right to equality of opportunity has to be read as

justified and the categories of STs and SCs must be dealt with separately from the rest of the

community for the purpose of adequate representation in the services under state. In the instant

case, the Supreme Court upheld the validity of the Railway Board Circular under which

reservation made in the selection posts for SC and ST candidates. The court also overruled its

earlier stance of 50 percent reservation rules and upheld 64.4 percent reservation, which was not

excessive “as mathematical precisions could not be applied in dealing with human problems”

Striking the rule which added the reserve vacancies by virtue of carrying forward rule to 54

percent, the courts in T. Devadasan v. Union of India16made it clear that where reservation was

so excessive that it would deny other classes of equal opportunity is fraud on the Constitution.

Similarly, no writ can be issued to the government to make reservation since Article 16(4) is

only on enabling provision.17

14 AIR 1976 SC 49015 (1981) 1 SCC 24616 AIR 1964 SC 17917 P&T Schedule Caste/Tribe Employees’ Welfare Assn. v. Union of India, (1988) 4 SCC 147

14

The Supreme Court in the above cases could not clearly lay down guidelines for the basis of

reservation and its extent. Therefore the State of Karnataka requested the Supreme Court to give

clear guidelines to be followed for SCs and STs in Vasanth Kumar18. In the instant case, the

Supreme Court tried to lay clear guidelines giving the “means test” as the basis for reservations.

The courts held that the reservation in the favor of SCs and STs should be continued on the basis

of test of economic backwardness after 2000. Insofar the Other Backward Classes (OBCs) are

concerned, two tests should be conjunctively applied for identifying them for the purpose of

reservation in employment and education that:

i) They should be comparable to the SCs and the STs in the manner of their backwardness

ii) They should satisfy the means test, such as the State Government may lay down in the

context of prevailing economic conditions.

The court further added “the State should give due importance and effect to dual

Constitutional mandates of maintenance of efficiency and equality of opportunity for all persons.

The nature of extent of reservation should be reasonable and rational”.

Reservation in present scenarioThe reservations in present scenario are not able to fulfill the wish of the constitution. A

candidate from a reserved class becomes an MLA from a reserved assembly seat. Once he

becomes an MLA his status got rises and enjoys every benefit an MLA from other forward

communities enjoys. His cast does not matter for making money or bar him from using powers!!

But his cast tag will continue with him. He expires and his son who have enjoyed every benefit

that a non backward citizen enjoys, has enough money dominates the backward people of his

own community and makes lobby, gets elected and enjoys all the benefits that has to be given to

backward people though he is not backward now only for the reason he had born in that class.

The other people of his own community will stay in the same situation even after 50 years from

now making our politicians to think the same kind of reservation to be continued.

Now our judiciary has to interpret the constitution regarding the opportunities, backward class of

people and reservations as it did interpret some of the fundamental rights in 1970s.

18 1985 Supp SCC 714: AIR 1985 SC 1495

15

ConclusionThe policy of reservation was put forward with a view to eliminating the caste-based inequalities

in our society. But this criterion can apply only to economic disparities. It has not been able to

remove cultural inequalities.

So, as per the true Indian snap, absolute equality is an impossible deal. Human beings differ in

their basic abilities, level of education, designation, strength, capabilities, skills, attitudes etc.

When such differences exist, it is the myth to have absolute equality. However it should be

ensured that the element of inequality must be reasonable and well justified we can say that the

aim of equality is to prevent arbitrary discrimination.

16

Bibliographyhttp://www.indianmba.com/Faculty_Column/FC240/fc240.html

http://www.hvk.org/Publications/kumar.html

http://www.shmoop.com/equal-protection/equality-constitution.html

http://ncbc.nic.in

http://www.frontlineonnet.com/fl2626/stories/20100101262607500.htm

http://risingindian.blogspot.com/2011/01/fundamental-rights-and-reservations.html

http://www.lawyersclubindia.com

V. N. Shukla’s Constitution of India by – Mahendra pratap singh (eleventh edition)

J.N Pandey

17