The controversies around reservation policy are not new. Shenbagam, a candidate from the so-called forward caste, filed a writ petition in the Madras High Court on 14 June 1950, within
six months the Indian Constitution came into effect, stating that she was denied admission in Medical College due to the communal reservation policy, which is against the provisions of the then new Constitution. The court quashed the 1928 Government Order (GO) of the Madras State that awarded reservation based on caste categories. Even the appeal filed in the Supreme Court was dismissed. E.V. Ramasamy Periyar launched an agitation and gave a call to observe August 14 as ‘vaguppurimai naal’ (Right to Reservation Day). As the protests gathered momentum, the then Union Cabinet, with members like Shanmugam Chetty (Finance Minister, belonging to Madras state), Sardar Patel (Home Minister), Ambedkar (Law Minister) and Nehru, who was the Prime Minister, introduced the First Constitution Amendment Bill in 1951. It is pertinent to note that the First Amendment Act 1951 was enacted by no less a body than the Constituent Assembly itself, which adopted the Constitution. The first Lok Sabha, incidentally, was constituted only on 17 April1952 after the first general elections, which were held in 1951-52. The Act added a proviso that the State can make special provision for the advancement of Socially and Educationally Backward Classes, SC and ST. It was also clarified that Article 29(2) or any other provision shall not prevent the implementation of the Reservation policy.
The reservation policy in Tamil Nadu again became vulnerable after the Indira Sawhney case, 1992, which capped the quota at 50 per cent. The state of Tamil Nadu enacted the Tamil Nadu Reservation Act of 1994, which through the 76th Constitutional Amendment Act, 1994, got placed in the IX schedule of the Constitution. The Act received protection from judicial review since it provided for 69 per cent of reservation against the court mandated ceiling of 50 per cent.
Now the 103rd Constitution Amendment provides reservation for economically weaker sections (EWS) of citizens. The Act has been challenged and the Supreme Court has referred a batch of petitions, which challenged the constitutionality, or otherwise of the Act, to a five-judge Constitution Bench. It provides 10 per cent reservation for EWS of the society in government jobs as well as for admission to government-run educational institutions and private educational institutions. The then Mahatrashtra government clarified that the 10 per cent EWS quota would not be applicable to Marathas as that excludes the poorer sections among the categories that are already covered under some reservation. The EWS quota is in addition to the already-existing reservation granted to SCs (15 per cent), STs (7.5 per cent), and OBCs (27 per cent). In that sense, this 10 per cent quota targets the poor among the so-called upper castes only. This quota exceeds the court mandated 50 per cent cap.
Recently, the UPSC Civil Services Examinations, 2019 results were announced. It implemented the EWS quota for the first time.
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Of the 829 candidates selected, 304 candidates are from the general category, and there are 251 OBC, 129 SC, 78 EWS and 67 ST candidates. It is interesting that the cut-offs for the EWS category candidates were lower than that of SC and ST during the mains examination stage, and was lower than that of the OBC category in all the stages. In other words, some of the qualified upper caste candidates would be even less so-called ‘meritorious’ than the qualified ST candidates.
Protective Discrimination
Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth, and Article 16 provides for equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state. The Act amended both these articles. Article 15 now has a sub-clause under which the state can make special provision for the advancement of any EWS of citizens. Another sub-clause, added through this amendment, says that the state can make special provision for advancement of any EWS of citizens relating to their admissions to educational institutions, aided or unaided by the state other than minority education institutions under Article 30. It has been made clear that this reservation would be in addition to existing reservation and would be subject to a maximum of 10 per cent. It is also clarified that what is provided for SC, ST and backward classes will not be affected. Further, Article 16 has also been amended. There is a new clause under which the state can make special provision for reservation of appointments or posts in favour of EWS in addition to the existing reservation. The maximum limit is again set at 10 per cent of posts. As this quota will be over and above the 50 per cent ceiling mandated by the Supreme Court in Indra Sawney (Mandal) case, 1992 and Nagaraj case, 2006, there was a need for the amendment of the Constitution.
The Article 16, which guarantees equality in opportunity in public appointment and public employment under the state, has under gone many changes. Under the first exception, the state can make special provision for reservation of appointments or posts in favour of any backward class of citizens, which has not been adequately represented in services. This provision existed in the original constitution itself. The 77th Amendment Act, 1995 empowers the state to make special provision for reservation in matters of promotion in any class of posts in services in favour of SC and ST, provided they have not been adequately represented in services. This was added to overcome the Supreme Court decision in Mandal Case, i.e., Indira Sawney case of 1992. Further, the 85th Constitution Amendment Act, 2001 provided the benefit of promotion retrospectively from 17th April 1995, and the 81st Amendment Act, 2000, allowed relaxation of ceiling of 50 per cent of reserved vacancies by allowing counting carry forwards vacancies separately. Various judgements have interpreted that the reservation in any service cannot be claimed as a matter of right. It is the discretion of the state. In other words, no writ can be filed for enforcement of the reservation policy under Article 32 because it is not a Fundamental Right. Some other issues constantly discussed are :a) the benefit of reservation in promotion is not yet available for OBC and EWS, though available for SC and ST; and b) the creamy layer provision, applicable to OBC, does not apply to SC and ST. The ‘economically weaker’ criteria are defined as those whose annual household income is below Rs 8 lakh; and having agricultural land less than 5 acres and have residential house below 1000 square feet or plot below 100 yards. The creamy layer of OBC is set at income level only, that is, those with annual household income less than Rs 8 lakh.
There is a proposal to modify the creamy layer criterion to completely align with EWS criterion.
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Issues of EWS Reservation Policy
The 103rd Amendment Act has been challenged. The petitioners claim that it violates the Supreme Court’s 1992 ruling in Indra Sawhney & Others vs. Union of India, which set the ceiling of reservations at 50 per cent. Further, some claim that the Act violates the Basic Structure of the Constitution, and that of the rights of private and unaided government institutions as the government is imposing reservation policy on them. The government cites Article 46 of the Constitution, part of Directive Principles of State Policy, “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”, as the basis for this law.
One needs to see how the Court is going to interpret its own earlier judgements and allow this compromise with the so-called merit and efficiency argument owing to which it capped quota at 50 percent. Further, whether the Court would recognise that the EWS quota literally in a hidden way is actually for poorer sections from the so-called forward castes; and whether backwardness can be determined exclusively by economic criteria, rather than the constitutionally recognised social and educationally backwardness criterion. Is the introduction of economic criterion alone as basis to make exceptions to fundamental rights not a violation of basic structure? Anyway, the controversies regarding reservation refuses to die down, or rather the politics has been creative to keep these debates alive for political purposes?
