In the multifaceted social structure, ensuring substantive and real equality, perforce, calls for consistent efforts to remove inequalities, wherever existing and in whatever form existing. Hence, the State is tasked with affirmative action. And, one duly recognised form of affirmative action is by way of compensatory discrimination, which has the preliminary goal of curbing discrimination and the ultimate goal of its eradication so as to reach the destination of real and substantive equality. This has led to what is known as reservation and quota system in State activities.
The Origin of Reservation System
Reservation and quota system was introduced in Malta much before it was mentioned in India[1]. Reservation in India was introduced in the last decades of the 19th century at a time when the Indian sub-continent was broadly divided, according to two main forms of governance, into British India and about 600 Princely States. Some of the progressive States had modernised the society through the promotion of education and industry.
For example, the Princely States of Mysore, Baroda and Kolhapur took considerable interest in the awakening and advancement of deprived sections of society. Chhatrapati Shahuji Maharaj, the Ruler of Princely State of Kolhapur, is said to have been influenced by the thoughts of egalitarian thinker Jyotirao Phule and is said to have introduced affirmative action in 1902, reserving a part of administrative posts for ‘depressed classes’.
He is also credited to have presided over the first All India Conference of the Depressed Classes at Nagpur in the year 1920 where Dr. B. R. Ambedkar was among the main speakers and where it was resolved, among other things, to have true representatives of the depressed classes in the legislature.[2]
Reservation and Quota System in Indian Constitution
The ‘doctrine of equality’, as collectively enshrined in Articles 14 to 18, happens to be the principal basis for the creation of a reasonable classification whereunder ‘affirmative action’, be it legislative or executive, is authorised to be undertaken. The constitutional Courts too, precedent by precedent, have constructively contributed to the evolution of what we may term as ‘reservation jurisprudence’.
The Constitution of India has about two dozen Articles providing for compensatory or special treatment for disadvantaged citizens or for protecting them against discrimination.
Provisions in Constitution
PART III specifies the Fundamental Rights that are constitutionally guaranteed.
- Article 12 defines the ‘State’ against whom these Fundamental Rights can be enforced.
- Article 13 declares void all laws offending Fundamental Rights.
- Article 14, apparently considered to be one of the most important of the Fundamental Rights, guarantees the right to equality and equal protection of the laws.
- Article 15 confers on the SEBCs/OBCs/SCs/STs the right to seek reservation in admission to educational institutions. It also provides for the advancement of these classes.
- Similarly, Article 16 provides for reservation in the matter of public employment for Backward Classes.
- Both Articles 15 and 16, being citizenship-specific unlike Article 14, prohibit discrimination broadly i.e., only on the grounds of, religion, race, caste, sex or place of birth.
PART XVI of the Constitution, making ‘Special Provisions Relating to Certain Classes’, provides for reservation of seats in legislatures for Scheduled Castes, Scheduled Tribes and so on.
Although several Articles are relevant as expressing the spirit of the Constitution, three of them are predominantly germane i.e., Article 14 as embodying the generic principle of equality (as genus) and Articles 15 and 16, enacting the facets of general equality (as species).
The Need for Reservation- Compensatory Discrimination
It is evident that the normal process of development benefits only that section of society which already possesses land, education, and social status/respect.
For those who have none of these, or are deprived of any of these, there was the task of making sure that they, who had been unable to enjoy these rights due to myriad reasons, were given special facilities, privileges and encouragement so that they could participate as equals in the mainstream of socio-economic system, taking them to the path of Liberty and Justice and thereby promoting Fraternity among all the citizens, assuring the dignity of the individual.
Given these objectives, the Indian constitutional structure, unlike the U.S. Constitution, specifically provides for ‘compensatory discrimination’; and, in that context, reservation is the basic gateway to tread the path of all-around development.
Thus, Article 15 enacts the principle of equality before law to specific situations. While it prohibits certain classifications, it expressly requires making of certain classifications which would impliedly be within the broad reach of Article 14.
Clause (4) was added to Article 15 by the Constitution (First Amendment) Act, 1951, w.e.f. 18.06.1951 to nullify the effects of the decision in Champakam. Article 16, which enacts another facet of equality, prohibits discrimination in the matters relating to employment or appointment to any office under the State on almost the same grounds as in Article 15.
Clauses (4) and (4-A) of Article 16 carve out another exception to the rule of equality and enable the State to make provisions for reservations of appointment in favour of any backward class of citizens. Such provisions include reservations or quotas that can be made in the exercise of executive powers and even without any legislative support.
The twin objectives of Articles 15 and 16 are to provide adequate protection to the disadvantaged and, through special measures, to raise their capabilities so that they would, on their own, compete with the rest.
The reference to Scheduled Castes and Scheduled Tribes in Articles 15 and 16 takes us to Articles 341 and 342, which authorise the President to issue a notified order in respect of each of the States/Union Territories specifying the castes, races or tribes which are to be regarded as Scheduled Castes and Scheduled Tribes.
Articles 338 and 338-A respectively provide for the establishment of National Commission for Scheduled Castes and National Commission for Scheduled Tribes.
Similarly, Article 338-B provides for the establishment of National Commission for Backward Classes. These constitutional bodies, inter alia, have the duty to participate in and advice on the socio-economic development of the communities concerned.
Article 342-A introduced by 102nd Constitutional Amendment w.e.f. 15.08.2018 authorises the President in consultation with the Governor of the State concerned to notify socially and educationally backward classes.
Articles 15 and 16 are just enabling Provisions
Reverting to Articles 15 and 16, it could at once be noticed that the provisions concerning reservation were crafted carefully to be just ‘enabling provisions’. They were worded to confer no more than a discretionary power on the State. They did not cast a duty on the State to the effect that it must set apart such and such proportion of seats in educational institutions or of posts in government services by way of reservation[3].The provisions were written so as to obviate a challenge to the steps that the State may take to raise the downtrodden. However, they were, as such, not to confer a right on anyone.
As regards reservation as one of the measures of affirmative action, the extent thereof has been a major area of debates and has led to various expositions. The following are the pertinent observations of Supreme Court in M. Nagaraj and Ors. v. Union of India and Ors: (2006)[4], essentially made in the context of Article 16: –
“102 …… Clauses (1) and (4) of Article 16 are restatements of the principle of equality under Article 14. Clause (4) of Article 16 refers to affirmative action by way of reservation. Clause (4) of Article 16, however, states that the appropriate Government is free to provide for reservation in cases where it is satisfied on the basis of quantifiable data that Backward Class is inadequately represented in the services.
Therefore, in every case where the State decides to provide for reservation there must exist two circumstances, namely, “backwardness” and “inadequacy of representation“. As stated above, equity, justice and efficiency are variable factors. These factors are context-specific. There is no fixed yardstick to identify and measure these three factors, it will depend on the facts and circumstances of each case. These are the limitations on the mode of the exercise of power by the State……..
If the State concerned fails to identify and measure backwardness, inadequacy and overall administrative efficiency then in that event the provision for reservation would be invalid.…….
Equality has two facets – “formal equality” and “proportional equality”. Proportional equality is equality “in fact” whereas formal equality is equality “in law”. Formal equality exists in the rule of law. In the case of proportional equality the State is expected to take affirmative steps in favour of disadvantaged sections of the society within the framework of liberal democracy. Egalitarian equality is proportional equality.
104………… As stated above, be it reservation or evaluation, excessiveness in either would result in violation of the constitutional mandate. This exercise, however, will depend on the facts of each case…..”
Thus, it could reasonably be summarised that for the socio-economic structure which the law in our democracy seeks to build up, the requirements of real and substantive equality call for affirmative actions; and reservation is recognised as one such affirmative action, which is permissible under the Constitution; and its operation is defined by a large number of decisions of Supreme Court.
However, it need be noticed that reservation, one of the permissible affirmative actions enabled by the Constitution of India, is nevertheless an exception to the general rule of equality and hence, cannot be regarded as such an essential feature of the Constitution that cannot be modulated; or whose modulation for a valid reason, including benefit of any section other than the sections who are already availing its benefit, may damage the basic structure.
Reference
Janhit Abhiyan v. Union of India, (2023)
[1] ‘Moments in a History of Reservations’ by Bhagwan Das in Economic and Political Weekly, 28.10.2000.
[2] Dr. Sanjay Paswan, Dr. Pramanshi Jaideva, ‘Encyclopaedia of Dalits in India’, Kalpaz Publications, New Delhi (2003)
[3] Chairman and Managing Director, Central Bank of India and Ors. v. Central Bank
of India SC/ST Employees Welfare Association and Ors.: (2015) 12 SCC 308.
[4] (2006) 8 SCC 21210