Implementation of Reservation Policy

in Educational Institutions

Reservation In Education Sector

OBJECTIVE:
This research paper Reservation in Education sector studies the reservation
policy of the Government of India with regard to admission in educational
institutions, as envisaged in the Constitution of India.
INTRODUCTION:
I would start my paper by pointing out the historical reasons for giving reservation. The
reservation policy in India is nothing new, as it had existed in our society from the time of the
British rule and the princely states. The motive of having reservation then was the eagerness
to modernise through the promotion of education and industry and maintaining unity among
themselves. Reservation continued in India even after having achieved independence from
the British. But there is an interesting fact that needs to be seen, that is the inclusion of
provisions of reservation in the Constitution of India based on caste in educational
institutions was after the intervention of the Supreme Court in the case of State of Madras v.
Champakam Dorairajan1 where the court struck down the classification for reservation being
based on caste, race and religion for the purpose of admission to educational institutions as
unconstitutional.
How far has this reservation policy succeeded is a question that always lingers in my mind.
The easiest possible criticism of the existing reservation policy is the creamy layer among the
backward classes having benefited by availing the reservation while the actual benefits have
never percolated to the needy. So my argument would be the strengthening of the government
schools which are in a very bad shape, which in itself would enable the providing of a level
playing field to the backward classes.
Why is it that the government tries to evade its duty of providing quality education in
government schools, and take that as an excuse for providing reservation to the backward
class, which is a populist policy thereby garnering votes for themselves. After reservation
being given in higher education and having reserved jobs for the backward classes in the
public sector now the debate is for giving reservation even in the private sector. So why is it
that it has reached this stage, thereby proving that it is an ineffective system and my paper
highlights why this existing system should be changed?

1951 AIR 226

HISTORICAL REASONS FOR GIVING RESERVATION

India was a country with a very rigid caste based hierarchal structure where the higher casts
enjoyed most of the benefits while the lower casts were looked down upon by the higher
casts. The majority of the population was backward socially, economically, educationally,
and politically. The backward classes were classified as the Scheduled castes (SC), Scheduled
tribes (ST), and other backward classes. By 1947 India became an independent nation. It was
at this point that the Constitution of India was framed and then the framers took forward the
interest of the backward classes by having Article 46 in the Constitution.
Article 46 stated that the state shall promote with special care the educational and economic
interest of the weaker section of the people, also protecting them from social injustice and all
forms of exploitation. Article 46 was complimented by the inclusion of many other articles
for the empowerment of the backward classes. Since they were the oppressed classes this was
thought to be the best mechanism to correct the mistake that was being practiced for many
hundreds of years.
Although the reservation policy is an exception to the equality rule it is still considered an
essential element of equality. As equality has many dimensions and one such dimension is
the reservation policy for the backward classes. From the beginning with very few articles on
reservation policies in the Constitution now the number of articles has gone up which I feel is
reaching a stage where there will have serious backlashes. Accordingly, the Constitution
empowered the state with the responsibility toensure non-discrimination and equal
opportunity in practice. Article 46, aDirective Principle of State Policy states:
The State shall promote with special care the educational and economic interests
of the weaker sections of the people, and, inparticular, of the Scheduled Castes
and the Scheduled Tribes, andshall protect them from social injustice and all forms
of exploitation. The general candidates are feeling the pressure all the time. From a simple
reservation of about 15% for the SCs & STs in educational institutions now the percentage
has gone up and also the other backward classes (OBCs) have been brought within the fold
of reservation equivalent to 27% by the suggestion of the Mandal Commission2. But even
after 59 years of independence the people still fall back on reservation.
It is not that the backward have not progressed but the percentage is less because those who
have already availed reservation and progressed keep getting it again. This results in the
formation of the creamy layer. Instead of having a reservation policy I feel the emphasis of
the government should be to build good schools in the rural as well as urban areas so that the
poor have an opportunity to study. All kinds of encouragement from the government should
be there in the implementation of such policies. The mid day meal program was a successful
one and we should see more of such schemes which encourage the poor to study.

Mandal Commission Report, 1980

CONSTITUTIONAL PROVISIONS
Indias affirmative action policy, more popularly known as Reservation
Policy, is authored by the provisions in the Indian Constitution which was
adopted in 1950, though its initiation at the country level dates back to the
early 1930s. The two important features of the provision in the constitution
which needs to be acknowledged for the purpose of this working paper are:
the principle of Non-discrimination and Equal opportunity and the provisions
enshrined in the Constitution empowering the State to take steps to ensure
equal opportunity.
Article 16 provides for equality of opportunity for all citizens in the matters
relating to employment or appointment to any office under the State. It
bans discrimination, particularly in any employment or appointment to any
office under the state on grounds of religion, race, caste, sex, descent,
place of birth, residence, or any of them. In fact Article 17 abolished the
institution of untouchability which sanctified discrimination and exclusion
of the erstwhile untouchables. The Article states: Untouchability is abolished
and its practice in any form is forbidden.
Accordingly, the Constitution empowered the state with the responsibility to
ensure non-discrimination and equal opportunity in practice. Article 46, a
Directive Principle of State Policy states:
The State shall promote with special care the educational andeconomic interests
of the weaker sections of the people, and, inparticular, of the Scheduled Castes
and the Scheduled Tribes, andshall protect them from social injustice and all forms
of exploitation.
Such provisions in the constitution relates to government services,
education,political representation and others.
In the case of education, the provision relates to non-discrimination in educational
institutions, equal representations, and measures for educational promotions.
Article 15 (4) states that Nothing in this article shall prevent the State from
making any special provision for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes and the Scheduled
Tribes. Article 29 (2) provides protection for admission and against discrimination
in any educational institution maintained by the State or receiving aid out of State
funds on grounds only of religion, race, caste, language or any of them.

MANDAL CASE
The scope and extent of article 16(4) has been examined thoroughly by the
Supreme Court in the historic case of IndraSawhney v. Union of India3, popularly
known as the Mandal Case.
The 9 Judge Constitution Bench of the Supreme Court by 6:3 majority held that the
decision of the Union Government to reserve 27% Govenrment jobs for the
backward classes provided socially advanced persons creamy layer among them
are eliminated, is constitutionally valid.
The court examined the scope and extent of Article 16(4) in detail and clarified
various aspects on which there were difference of opinion in various earlier
judgments. The majority opinion of the Supreme Court on various aspects of
reservation provided in article 16(4) may be summarized as follows4 :
1. Bakcward class of citizen in article 16(4) can be identified on the basis of
caste and not only economic basis.
2. Article 16(4) is not an exception to aticle 16(1). It is an instance of
classification. Reservation can be made under aticles 16(1).
3. Backward classes in Article 16(4) are not similar to as socially and
educationally backward in Article 15(4).
4. Creamy layer must be excluded from backward classes.
5. Article 16(4) permits classification of backward classes into backward and
more backward classes.
6. A backward class of citizens cannot be identified only and exclusively with
reference to economic criteria.
7. Reservation shall not exceed 50 percent.
8. Reservation can be made by Executive Order.
9. No reservation in promotions.
10. Permanent statutory body examine complaints of over-inclusive/underinclusion.
Position after Mandals case: The Mandal case decision laid down a workable and
reasonable solution to the reservation problem. But the politicians are still trying
to dilute the effects of the Mandal decision in order to make their vote bank
intact.

3
4

AIR 1993 SC 1495

th
Dr J.N.Pandey, 50 Edition

INSTANCES OF CONFLICTS OVER RESERVATION POLICY

In State of M.P. v. Nivedita Jain5, the Supreme Court upheld the validity of an
Executive Order of the State Government which had completely relaxed minimum
qualifying marks in Pre-medical examination for selection of students to medical
colleges of the state in respect of STs and SCs candidates. Rule 20 empowered
the State Government to relax the minimum qualifying marks in the case of SCs
and STs if the required number of candidates were not available in these two
categories. Even after relaxation, a large number of seats remained unfilled.
Thereafter, the Government issued the impugned order completely relaxing the
minimum qualifying marks for these two categories.
The High Court struck down the decision as violative of article 15 (4)6. On an
appeal, the Supreme Court held that the Regulation 2 of the Medical Council of
India relating to conditions to minimum qualifying marks was merely directory and
not mandatory and hence the Executive order completely relaxing the minimum
qualifying marks was not violative of article 15(4). In absence of any other law to
the contrary, it is open to the Government to impose such conditions as would
make the reservation effective. In any particular situation taking into
consideration the realities and circumstances prevailing in the State the
Government is entitled to vary and modify the conditions regarding selection for
the admission if such modification is necessary for achieving the purpose of
reservation. Rule 20 empowers the State to grant such relaxation in the minimum
qualifying marks to the extent considered necessary. Therefore the relaxation
made by the Government in favour of SCs and STs cannot be said to be held
violative of article 15(4).
The Supreme Court also overruled the Full Bench decision of the Patna High Court
in Amalendu Kumar v. State of Bihar7, where it was held that the reduction of
the qualifying marks in favour of the SCs and STs by an Executive Order first from
45% to 40% and subsequently to 35% on the ground that the seats reserved for
these categories would remain unfilled was violative of article 15 (1) and hence
unconstitutional.

AIR 1981 SC 2045

Article 15(4) states that, Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from
making any special provision for the advancement of any socially and educationally backward classes of
citizens or for the Scheduled Castes and the Scheduled Tribes
7
AIR 1980 Pat 1
6

In another case Dr.Preeti Sagar v. State of Madhya Pradesh8, a five judges

Constitution Bench of the Supreme Court by a majority of 4:1 has held that merit
alone can be the criterion for selecting students to the super speciality courses, in
medical and engineering courses.
The Supreme Court said, Admissions to the highest available medical course in
the country at the super speciality levels, where even the facilities for training are
limited must be given on the basis of competitive merit. The object of article 15(4)
is to advance the equality principle by proving for protective discrimination in
favour of the weaker sections so thatthey may become stronger and be able to
compete equally with others, one cannot ignore the wider interests of society
while devising such special provision.

AIR 1999 SC 2894

Constitutionals Amendments in Current Scenario

The Constitution (117th Amendment) Bill, 2012

The Constitution (One Hundred Seventeenth Amendment) Bill, 2012 was introduced
in the Rajya Sabha on September 5, 2012 by Mr. V Narayansamy, Minister of State
for Personnel, Public Grievances and Pensions.

In 1992, the Supreme Court in the case of Indira Sawhney v Union of India 9had
held reservations in promotions to be unconstitutional. Subsequently in 1995, the
central government had amended the Constitution and inserted Article 16(4A). This
provided for reservation in promotions for Scheduled Castes and Scheduled Tribes
which in the opinion of the state are not adequately represented in the services.

In 2006, the Supreme Court in the case of M. Nagraj v Union of India 10upheld the
constitutional validity of the amendment. While upholding the validity of the
amendment, the court held that before framing any law on this issue, the state will
have to satisfy the test of; (a) backwardness of the particular SC and ST group; (b)
inadequate representation of the said group; and (c) efficiency of administration.

In light of the recent judgment of the Supreme Court, the central government has
introduced the present Bill amending the Constitution. The Bill seeks to substitute
Article 16(4A) of the Constitution of India.

The Bill provides that all the Scheduled Castes and Scheduled Tribes notified in the
Constitutional shall be deemed to be backward.

Article 335 of the Constitution states that the claims of the Scheduled Castes and
Scheduled Tribes have to be balanced with maintaining efficiency in
administration. The Bill states that provision of the amendment shall override the
provision of Article 335.

AIR 1993 SC 477

Writ Petition (civil) 61 of 2002

10

ANALYSIS OF THE PROBLEM

Government Schools
Every parent tries to send their child to private & Convent schools and not the government
schools, why is it so? They spend thousands of rupees for this purpose but they dont prefer
to avail the free education given by the state. The government schools face many problems
like shortfall of teachers, insufficient funds to pay salaries of the teachers etc. There is also a
shortfall of qualified teachers. Whenever the government is alerted of the condition it turns a
deaf ear to the problems. The government on an average spends about 3% of the GDP on
education while countries that have developed at a fast pace have spent about 6% of their
GDP on education. Right to education till the age of 14 was made compulsory after the
intervention of the court.
The government has a very negligent attitude towards government schools. This was visible
from the priority given by the last National Democratic Alliance government to change the
curriculum of the schools so that it would result in the development of their children in the
manner they preferred. Such acts by the government only show the low priority level
awarded by it to the educational sphere. This needs to be corrected. Only if this attitude of the
government is changed and converted to an active one can there be development of the
backward classes as education is a very important element that shapes every persons life.
Reservation in the Private Sector
The current debate is for awarding reservation in the private sector as globalization has
resulted in a boom in the private sector while there has been a shrinkage in the jobs being
generated by the public sector entities. But is this nation only for the backward? Why is it that
every time the politicians are interested in the issues of the backward classes? The higher
casts over the generations may have been very suppressive but that does not mean that tools
for empowerment like reservation are misused. It has increasingly been the case with the
politicians. When every election nears then they have some kind of reservation or the other
being announced which I think is just a mechanism to get votes.
If real empowerment is the aim I think the backward should exhort the government to make
good schools and world class institutions for higher education and make conditions
conducive for availing of the reservation. This would go a long way in solving the problems
faced by the backward. If the backward rely on the politicians completely and think
reservations would help them out then they would be repeating the mistake that they have
been repeating all these years. It would only help in the concentration of power in a few
among this class which is not the purpose of giving reservation.
I think it is the very malfunctioning of the reservation system that has made it reach this stage
where they have started asking for reservation to be awarded in the private sector. If the
whole reservation policy would have been successful then reservation should have ended in
the educational institutions itself as those who would have got into these institutions would
have developed their skills whereby they could work as professionals or join the public sector
depending upon their interest. But the backward also have to change their mind set as they
feel they would keep getting reservation throughout so why work. I have seen the laid back
attitude of the backward classes in my university which is one among the ten National Law
Universities established in the country where they are completely funded by the state in spite
of which they dont study.

I am strongly against awarding any kind of reservation on the basis of cast which I dont
think is necessarily a good mechanism to determine the backwardness. A better mechanism
would be identifying the backwardness based on the economic background. A good example
to understand this would be the Brahmins who are considered to be the higher cast in the
hierarchical structure of the Hindus of whom many are not even able to meet their ends meet
but since they are the higher casts they cannot even get any reservation and be empowered.
Economic Criteria
After seeing the functioning of the reservation policy for all these years I think its high time
we shifted from this criterion of reservation to the economic criteria. Although it is not very
easy to do the same but at least there should be a patient try on the part of the legislature in
India to implement such proposals. This would in turn help equality reach the masses and not
get misused as of now which is the aim of the framers of the Constitution as well.

Implementation and Monitoring

The Central Government has developed administrative mechanisms for regulating,
monitoring and implementing the reservation policy and otheraffiliated
programmes. These institutions can be divided into:(a) ones that are directly
involved in regulation (i.e. preparing rulesrelating to reservation from time to
time) and monitoring thefulfilment of the required quotas in the central
government services,(b) those acting as investigative agencies in the event of
violation ofreservation rules, and(c) those that are concerned with policymaking
and overseeing theoverall development of the SC/STs.
Department of Personnel and Training
The Department of Personal and Training (DOPT) is the division located inthe
Ministry of Personnel, Public Grievance and Pension. It regulates and monitors the
reservation policy in government services. Its main function is to enforce or modify
the rules, as well as, monitor the fulfillment of quotasas per given rules in central
government services. Each ministry andgovernment supported organization has an
administrative unit known as theSC/ST Cell with liaison officers responsible for
ensuring that instructions
National Commission for Scheduled Castes and Schedule Tribes
The other important independent organization is the National Commission for SC
and ST. It functions as the investigating agency on specific complaintsfrom SC/ST
employees regarding service and promotion matters. The mattersmay be related to
incidences of discrimination, violation of reservation policy,etc. The Commission
has the power of functioning as a Civil Court and hasthe authority to summon an
employer for enquiry and action. The Commissionalso oversees the development of
SC/STs, prepares report about theirprogress annually, which is accordingly,
discussed in the Parliament.

Committee of Parliament on Welfare of Scheduled Castes and

Scheduled Tribes
Committee of Parliament on Welfare of SCs /STs is another body (comprising of
SC/ST Members of Parliament) entrusted with the task of examining theprogress
regarding the representation of SC/STs. It attempts to make suitable
recommendations for effective implementation of policies and programmes.
Ministry Social Justice and Empowerment and Ministry of Tribal
Affairs
At the policy framing level are the Ministry of Social Justice andEmpowerment,
Ministry of Tribal Affair and Committee of Parliament onWelfare of SCs/STs. The
Ministries are the nodal bodies which oversee thetask for the development of the
SC/STs. The ministries are responsible forthe overall development of the SC/ST
population. They carry out variousschemes related to education, and economic
development.
Planning Commission, Backward Caste Division
The Ministry of Social Justice and Empowerment and the Ministry of TribalAffairs
work in close collaboration with the Planning Commission (PC) ofIndia; the PC has
a special Backward Caste Division that oversees the workof economic planning
related to regulation and implementation of thereservation policy.

CONCLUSION
Since I have already mentioned some of the reasons for the failure of the existing system I
think the time for introspection has come. The existing system has not been able to fulfil the
equality clause of the constitution under Article 14 of the Constitution due to the lack of
infrastructure in the rural areas where a proportionate amount of the backward classes reside.
Neither has it been successful in abolishing the caste system. A disturbing sign has been the
demanding of reservation by the other backward class whereby the majority would not be left
with seats proportional to their numbers. So it is my opinion that the legislators take the
necessary steps to tackle the issues before there may be serious social backlashes.