Historical Perspective: William Hunter and Jyotirao Phule in 1882 originally conceived the

idea of caste-based reservation system.

In September 1921, the so-called “Communal GO” (or Government Order) was passed in the
Madras Presidency by a provincial government led by the Justice Party. The Communal GO
was essentially a power-sharing agreement that had the blessings of the colonial
government. It allocated government jobs and seats in public higher education institutions
to different communities in specific proportions. It was designed to check the near
monopoly of Brahmins on these opportunities even though they constituted only about
three per cent of the population.

Article 15(3) recognises the fact that the women in India have been socially and
economically handicapped for centuries and, as a result thereof, they cannot fully
participate in the socio-economic activities of the nation on a footing of equality. The
purpose of Art. 15(3) is to eliminate this socio-economic backwardness of women and to
empower them in such a manner as to bring about effective equality between men and
women. The object of Art. 15(3) is to strengthen and improve the status of women. Art. 15(3)
thus relieves the state from the bondage of Art. 15(1) and enables it to make special
provisions to accord socio-economic equality to women.

Objective is to create an inclusive social order: To analyze this concept of reservation, the
correct connotation of the term “inclusive social order” must be understood. It is a system of
governance through a kind of political arrangement in which members of different sections
of society have opportunity to participate on equal footing. Such a social order serves two
purposes i.e., firstly, Participatory social order is conducive to peaceful and sustainable
development of society. Secondly, it augments pool of human right development.

Kinds of Reservation: Reservation is of two types i.e., vertical reservations and horizontal
reservations. Social reservations in favour of Schedule Caste (SC), Schedule Tribe (ST) and
Other Backward Class (OBC) under Article 16(4) are 'vertical reservations'. Special
reservations in favour of physically handicapped, women etc., under Articles 16(1) or 15(3)
are 'horizontal reservations'. For example, if there are 200 vacancies and 15% is the vertical
reservation for SC and 30% is the horizontal reservation for women, the proper description
of the number of posts reserved for SC, should be: "For SC: 30 posts, of which 9 posts are for
women".

Reservation vis-à-vis Equality:

Equality is the prime principle and starting point of all other liberties. Our Constitution
contains “Code of Equality” i.e., Article 14, 15 and 16.
The concept of equality and reservation are diagonally opposite to each other. Article 15
provides equality by clauses (1) and (2), but the same has been negated by subsequent
clauses which permits making of special provisions in favour of some particular classes.

 In the same manner, Article 16(1) contains another facet of equality. It secures equality
of opportunity in matters relating to public employment to every citizen. But it does not
 prevent the State from prescribing the requisite qualifications and the selection
procedure for recruitment or appointment.
 Such qualifications may include mental excellence, physical fitness, sense of discipline
and moral integrity etc.
 These should not be arbitrary. It must be based on reasonable ground having nexus with
the efficient performance of the duties and obligations attached to that office or post.
Clause (2) of Article 16 further strengthens the guarantee contained in clause (1). Clause
(2) prohibits the state from making discrimination against any citizen in respect of any
employment or office under the State only on grounds of religion, race, caste, sex,
descent, and place of birth, residence, or any of them.
 Clause (3) empowers the parliament to make any law prescribing any requirement as to
residence within that state or union territory. Clause (4) permits the state to make
provision for the reservation of appointments or posts in favour of any backward class of
citizens who are not adequately represented in the services under the state. It is only an
enabling provision which has been enacted to secure egalitarian equality.

Constitutional Provisions Governing Reservation in India

 Article 15(4) and 16(4) of the Constitution enabled the State and Central Governments
to reserve seats in government services for the members of the SC and ST.
 The Constitution was amended by the Constitution (77th Amendment) Act, 1995 and a
new clause (4A) was inserted in Article 16 to enable the government to provide
reservation in promotion.
 Later, clause (4A) was modified by the Constitution (85th Amendment) Act, 2001 to
provide consequential seniority to SC and ST candidates promoted by giving
reservation.
 Constitutional 81st Amendment Act, 2000 inserted Article 16 (4 B) which enables the
state to fill the unfilled vacancies of a year which are reserved for SCs/STs in the
succeeding year, thereby nullifying the ceiling of fifty percent reservation on total
number of vacancies of that year.
 Article 330 and 332 provides for specific representation through reservation of seats
for SCs and STs in the Parliament and in the State Legislative Assemblies respectively.
 Article 243D provides reservation of seats for SCs and STs in every Panchayat.
 Article 233T provides reservation of seats for SCs and STs in every Municipality.
 Article 335 of the constitution says that the claims of SCs and STs shall be taken into
consideration constituently with the maintenance of efficacy of the administration.

Reservations in Public Appointment

Article 16 (1) is a facet of Article 14. Articles 14 and 16(1) are closely inter-connected. Article
16(1) takes its roots from Article 14. Article 16(1) particularizes the generality of Article 14
and identifies, in a constitutional sense, “equality of opportunity” in matters of employment
under the state.

Articles 14, 15(1) and 16(1) were thought to embody the general principle of formal equality.
Articles 15(4) and 16(4) were understood to be exceptions to this general principle,
advancing
the cause of social justice.
Comparing Article 15 and 16
Articles 14, 15(1) and 16(1) were thought to embody the general principle of formal equality.
Articles 15(4) and 16(4) were understood to be exceptions to this general principle,
advancing
the cause of social justice.

Article 15 does not mention “descent” and “residence” as the prohibited grounds of
discrimination, whereas Article 16 does. Thus, with regard to the grounds of discrimination,
Article 15 is somewhat narrower than Article 16.

Reservations under Article 16

Under Article 16(4), the state may make 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 public services under the state.

Explaining the nature of Article 16(4), the Supreme Court has stated that it is “an enabling
provision” conferring a discretionary power on the state for making any provision or
reservation of appointments or posts in favour of any backward class of citizens which, in the
opinion of the state, is not adequately represented in the service of the state. Article 16(4)
neither imposes any constitutional duty nor confers any Fundamental Right on any one for
claiming reservation. (Indira Sawhney)

Again in Mukesh Kumar case 2020- SC held that There is no fundamental right which inheres
in an individual to claim reservation in promotions. No mandamus can be issued by the
court directing the State Government to provide reservations. Even if the under-
representation of Scheduled Castes and Scheduled Tribes in public services is brought to the
notice of this court, no mandamus can be issued by this court to the State Government to
provide reservation.

A balance needs to be struck between individual rights under Articles 14 and 16(1), on the
one hand, and the affirmative action taken by the state under Article 16(4). Therefore,
reservation under Article 16(4) has to be within reasonable and legitimate limits. In making
reservation under Article 16(4), the state cannot ignore the Fundamental Rights of the rest
of
the citizens.

The State in terms of Article 16 of the Constitution provides two types of reservations i.e. a
vertical or social reservation as provided for in Article 16 clause (4) and horizontal
reservation which is preferable to Article 16 clause (1). Special reservation in favour of
physically handicapped, women, etc. under Article 16(1) or 15(3) of the Constitution are the
instances of horizontal reservation.
Article 16 does not bar a reasonable classification of employees or reasonable tests for
selection. Equality of opportunity of employment means selection. Equality of opportunity
of employment means equality as between members of the same class of employees and
not equality between members of separate, independent, classes.

There can be no denial of equality of opportunity unless the person who complains of
discrimination is equally situated with the person or persons who are alleged to have been
favoured. Those who are similarly circumstanced are entitled to equal treatment.

Reservation Vs Merit

Reservation does not rule out merits. Judging of merit may be at several tiers. It may
undergo
several filtrations. Ultimately, the constitutional scheme is to have the candidates who would
be able to serve the society and discharge the functions attached to the office. Article 16(4)
has to be interpreted in the background of Article 33.

The Mandal Commission Case Indra Sawhney v UOI,

known as the Mandal Commission case, is a very significant pronouncement of the Supreme
Court on the question of reservation of posts for backward classes. The court has dealt with
this question in a very exhaustive manner.

The Mandal Commission was appointed by the Government of India in terms of Article 340
One of the major recommendations made by the Commission was that, besides
of the Constitution in 1979 to investigate the conditions of socially and educationally
backward classes .

One of major Recommendation of the Commission was the Scheduled Castes (SCs) and
Scheduled Tribes (STs), for Other Backward Classes (OBCs) which constitute nearly 52%
component of the population, 27% government jobs be reserved so that the total
reservation for all, SCs, STs and OBCs, amounts to 50%.

On Aug. 13, 1990, the V.P. Singh Government at the centre issued an office memorandum
accepting the Mandal Commission recommendation and announcing 27% reservation for
the
socially and educationally backward classes in vacancies in civil posts and services under the
Government of India.

Ultimately, the constitutional validity of the memorandum came to be questioned in the

Supreme Court through several writ petitions. The question of constitutional validity of
the memorandum was considered by a Bench of nine judges.
Findings:
1. A measure of the nature contemplated by Article 16(4) can be provided not only by
the Parliament/Legislature but also by the executive through administrative
 instructions in respect of Central/State services and by the local bodies and “other
authorities” as contemplated by Article 12, in respect of their services.
2. What is the meaning of the expression “backward class of citizens” used in Article
16(4)? What does the expression signify and how should such classes be identified?
The accent of Article 16(4) is on social backwardness. From a review of the previous
case-law in the area, the court has concluded that the judicial opinions emphasize
the integral connection between caste, occupation, poverty and social backwardness.
Social, educational and economic backwardness are closely intertwined in the Indian
context. As regards identification of backward classes, caste may be used as a
criterion because caste often is a social class in India. But caste cannot be the sole
criterion for reservation. Reservation is not being made under Article 16(4) in favour
of a caste but a backward class.
3. A very important recommendation made by the court is that the “creamy layer”, the
socially advanced members of a backward class, should be excluded from the benefit
of reservation. Such exclusion would benefit the truly backward people and, thus,
more appropriately serve the purpose of Article 16(4).
4. The total reservation cannot exceed 50% in any one year. Article 16(4) speaks of
“adequate representation” and not “proportional representation”. The power under
Article 16(4) must be exercised in a fair manner and within reasonable limits.
Therefore, reservation under Article 16(4) should not exceed 50% of the
appointments or posts “barring certain extraordinary situations” as explained
hereafter.
5. Court has also observed- “While 50% shall be the rule, it is necessary not to put out
of consideration certain extraordinary situations inherent in the great diversity of this
country and the people”
6. The court has divided the total reservation of 50% into “vertical” and “horizontal”
reservations. The reservation in favour of S/C, S/T and other backward classes (OBC)
under Article 16(4) may be called vertical reservation whereas reservation made in
favour of physically handicapped [under Article 16(1)] can be referred to as
horizontal reservation. Horizontal reservations cut across the vertical reservations
what is called interlocking reservations.
7. Reserved posts remaining unfilled in one year may be carried forward to the next
year but subject to the over-all limit that over-all reservation in any one year ought
not to be more than 50%.

EWS Quota Case: Janhit Abhiyan v UOI, (2021) 11 SCC 78.

The Constitution (103rd Amendment) Act, 2019 received Presidential assent and came into
force on 12.01.2019. By the impugned amendment the total reservation is now to the extent
of 59.50% [10% for EWS in addition to 15%, 7.50% and 27% for the SC, ST, and OBC-Non-
Creamy Layer]. The Scheduled Castes (SCs), the Schedule Tribes (STs) and the Non-Creamy
Layer of Other Backward Classes (OBCs-NCL) are excluded from the ambit of the 10%
reservations amongst the open competition candidates. The open competition will now be
within the balance 40.50%.

The constitutional validity of the 103rd Amendment Act, 2019 was called into question
before the Supreme Court in a batch of writ petitions (Janhit Abhiyan v UOI). A three-judge
bench, vide order dated 05.08.2020, directed that these matters be placed before a
Constitution Bench in view of the mandate of Article 145(3) of the Constitution- (Uday U
Lalit, CJ, S Ravindra Bhat, Dinesh Maheshwari, Bela Trivedi and J B Pardiwala, JJ) was
constituted to consider the following questions:

i. Whether the 103rd Constitution Amendment can be said to breach the basic
structure of the Constitution by permitting the State to make special provisions,
including reservation, based on economic criteria?
ii. Whether the 103rd Constitution Amendment can be said to breach the basic
structure of the Constitution by permitting the State to make special provisions in
relation to admission to private unaided institutions?
iii. Whether the 103rd Constitution Amendment can be said to breach the basic
structure of the Constitution in excluding the SEBCs/OBCs/SCs/STs from the scope
of EWS reservation?
iv. Whether the cap of 50% referred to in earlier decisions of the Supreme Court can
be considered to be a part of the basic structure of the Constitution? if so, can
the Constitution Amendment be said to breach the basic structure of the
Constitution?
Findings:
 Affirmative action by reservation is an exception to the general rule of equality, and
cannot be regarded as such an essential feature of the Constitution that cannot be
modulated;
 ‘economically weaker sections of citizens’ is not a matter of mere semantics but is an
expression of hard realities. Poverty is not merely a state of stagnation but is a point
of regression. The expression “other weaker sections” occurring in Article 46 of the
Directive Principles cannot be read ejusdem generis with the expression “Scheduled
Castes and Schedule Tribes”. Consequently, the obligation on the State is not
confined to only SCs/ STs or those sections who are similarly circumstanced to SCs
and STs.
 The learned judge went on to observe that past decisions of the Supreme Court
holding that reservations cannot be claimed only on the economic criteria, apply only
to class or classes covered by Articles 15(4) and/or 15(5) and/or 16(4). This cannot be
understood as having ordered a blanket ban on providing reservation for other
sections who are disadvantaged due to economic conditions.
 “Backward Classes having been classified by the Constitution itself as a class
deserving special treatment and the Constitution having itself specified the nature of
special treatment, it should be presumed that no further classification or special
treatment is permissible in their favour apart from or outside of clause (4) of Art 16.
 Court also concluded that the 50% ceiling proposition could be applied only to those
reservations which were in place before the amendment in question. No decision of
the Court could be read to mean that even if the Parliament finds the necessity of
another affirmative action by the State in the form of reservation for a section or
class in need, it could never be provided.