CA IV- CONSTITUTIONAL GOVERNANCE I

The biggest impending socio legal problem which has divided Indian society into two halves
is reservation for other backward classes inter alia on the basis of caste. In 2007, the Central
Government proposed an additional 27% reservation for the other backward classes in
educational institutions. The said move was sought to be justified by the central government as
being an extended policy to achieve the goals under the Directive Principles of State Policy and
in Particular the goals as defined under Article 38 of the Indian Constitution (the
Constitution). Reservations which were supposed to be a temporary measure now looks more or
less set for a much longer innings. The constitutional provision which legally empowered the
central government to make special provisions for other backward classes was Article 15(5) of
the Constitution. It is pertinent to note that Clause (5) of Article 15 was originally not a part of
the Constitution and was introduced by the Constitution (Ninety Third Amendment Act, 2005).
This move of the central government was met with extreme opposition from certain quarters of
the society and especially the non OBC student community as a result of which several writ
petitions challenging the said Constitution Amendment came to be filed in various High Courts
of India as well as in the Indian Supreme Court.
The issue in the presented policy is that the state government of Telangana seeks to surpass the
50% cap on reservation for disadvantaged communities, that was set in the Indira Sawhney v.
Union of India, whereas the union government strongly opposes the same. The author wishes to
stand by the Unions stance in the present matter and this paper will deal with her reasons for the
same.
First of all, the author would like to draw the attention of the reader to the purpose of the
reservation system. One must understand that, when reservations were proposed, Ambedkar
defended them by specifically arguing that they were temporary and that the original plan was to
phase them out in ten years time. The ultimate ambition is to dissolve group identities, and
distribute benefits and burdens only on the basis of the individual or qua individual.
Ambedkars defense of a limited exception to the overall equality principle was that it was

necessary precisely to achieve that ultimate, individualist goal. However, as it was shown in the
case of TamilNadu, that is not the purpose that is being fulfilled in the status quo. In the Tamil
Nadu case, the Sattanathan Commission recommended a separate educational and employment
reservation of 16 per cent for the Most Backward Classes and 17 per cent for the Backward
classes. Following which, in 1971, the DMK government hiked the reservation for the Backward
Classes from 25 per cent to 31 per cent and for the Scheduled Castes and Schedulead Tribes
from 16 per cent to 18 per cent. Then in 1980, MGR's All India Anna Dravida Munnetra
Kazagham government increased the reservation for the Backward Classes from 31 per cent to
50 per cent. From then on, there has been 69 per cent reservation in educational institutions.
The reservation cap was pushed on the grounds that the Indra Sawhney judgement permitted the
same in para 94A of the judgement which reads that Just as every power must be exercised
reasonably and fairly, the power conferred by Clause (4) of Article 16 should also be exercised
in a fair manner and within reasonably limits and what is more reasonable than to say that
reservation under Clause (4) shall not exceed 50% of the appointments or posts, barring certain
extra-ordinary situations as explained hereinafter.
With the addition of Article 15(4) through an amendment in 1951, the State was permitted to
make special provisions for advancement of any socially and educationally backward classes of
citizens or for the Scheduled Castes and the Scheduled Tribes. The issue here is regarding the
determination of who are socially and educationally backward classes. As for the question of
defining backward classes, it has been considered by the court in various cases. On the whole,
the Supreme Courts approach has been that state resources are limited and protection of one
group extensively affects the constitutional rights of the other citizens to demand equal
opportunity and efficiency and public interest. From the analysis of several judicial
pronouncements concerning the definition of backward classes, several propositions emerge, out
of which, the author finds the following proposition most recurring. First of all, the
backwardness envisaged by 15(4) is both social and educational and not either social or
educational. 1 In the present case, the classification being made is purely on a religious basis and
is thus in encouragement of communal classification which is unconstitutional. Additionally, in

E.V.Chinnaiah v. State of A.P, AIR 2005 SC 162

M.R.Balaji v. State of Mysore2, the court equated the social and educational backwardness to
that of the Scheduled Castes and Scheduled Tribes. The Muslim community in Telangana falls
under neither of these categories. Also, upon examination of Safeguards to Minorities 3 it may be
inferred that while caste may be a relevant factor to define backwardness, it can not be the only
or even the dominant criterion. The author feels that the same logic will apply to religion as well
i.e., while it may play a role in the definition of backwardness based on evidence of historical
discrimination, it can not be the sole criterion, as in the present case. As far as reservations in
admissions and jobs are concerned, owing to the limited opportunities in the country,
governments are pressurized to indulge in all kinds of reservations for all kinds of groups apart
from reservations for Scheduled castes, Scheduled tribes and backward classes. Basically, any
reservation is discriminatory for it means that as between two candidates of equal merit, the
candidate belonging to the reserve quota is preferred to the one having no reserve quota. Many
deserving candidates then feel frustrated because of reservation for the less deserving persons
and they seek to challenge the scheme of reservation as unconstitutional. This is what happened
in the Balaji case.4 Additionally, it must be noted that such reservations can be made only for a)
women, b) socially and educationally backward classes and the scheduled castes and scheduled
tribes under article 15(4) and 15(5) or other groups which have a reasonable nexus behind their
classification. The classification being made in the present case is solely based on religion and is
hence not reasonable in nature. This further renders the policy as such unconstitutional.
Article 16(4) enables the State to make reservations 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. However, in classification of a class for this purpose, religion or place of
birth can not and must not be the sole criterion for this would be directly in violation of article
16(2).5 While reservation of posts for any backward class of citizens can not be rendered void,
reservation of posts between Hindus, Muslims and Christians infringes Articles 16(1) and 16(2).6
The next issue that the author wishes to bring to the notice of the reader is that of the detrimental
effects of excessive reservation. The first effect is the hogging of reservations by the creamy
2

M.R.Balaji v. State of Mysore, AIR 1963 SC 649

Safeguards to minorities, Ch. XXXV
4
M P Jain, Indian Constitutional Law (LexisNexis Butterworths Wadhwa) p.p.948
5
M P Jain, Indian Constitutional Law (LexisNexis Butterworths Wadhwa) p.p. 988
6
Triloki Nath Tiku v. State of Jammu and Kashmir, AIR 1969 SC 1
3

layer, thereby preventing the trickle down effect that was initially envisaged. Once an entry level
reservation is provided to a member of a backward class, that reservation is automatically given
to him at every stage of promotion as well. The person in question takes a shorter route to reach
the higher echelons of the work hierarchy with minimal effort on his part. Also, reservation in
promotions has been an arena of intense disagreement between Parliament and the Supreme
Court. To overcome the decision of a nine-judge bench in Indra Sawhney and other judgments
that disallowed reservation in promotions and consequential seniority, Parliament enacted three
constitutional amendments in 1995, 2000 and 2002. While upholding the constitutional validity
of the amendments, the Supreme Court in Nagaraj made it very clear that Article 16 (4A), which
was inserted through these amendments, was only an enabling provision. In essence, every time
a government or the legislature sought to provide reservation in promotions under Article 16
(4A), it would have to pass constitutional muster. While justifying each attempt to provide
reservation in promotions, the state would have to demonstrate backwardness, inadequacy of
representation and maintenance of efficiency. The U.P. Government Servants Seniority Rules
challenged in the U.P Power Corporation case was one such attempt.7
The three conditions laid down in Nagaraj raise a number of concerns. It must be remembered
that Article 16 (4A) permits reservation in promotions only for the SCs/STs and not for the
OBCs. In this context, the first condition in the Nagaraj case requiring the state to demonstrate
backwardness of the beneficiaries is problematic. It is problematic because it amounts to
bringing in the creamy layer test for SCs/STs through the backdoor. It has been held numerous
times by the Supreme Court, including in the judgment in Indra Sawhney , that the test of
creamy layer is not applicable to SCs/STs. The settled position of law is that all members of
recognised SC/ST groups automatically satisfy the condition of backwardness and there is no
burden on the state to further establish the backwardness of those individuals benefiting from
reservation. While this requirement exists for the OBCs in terms of the creamy layer test,
Justice (as he then was) Kapadias opinion in Nagaraj does not provide any justification for not
following the position endorsed by a larger bench in the context of the SCs/STs.
The second problem is that of carry forward or carry over reservation. From 1995-2000, the
Supreme Court saw reservation in promotional posts of upto 80-90%. This not only of such
7

The Hindu, Winning the case for promotion quotas, Anup Surendranath

nature that it provides double advantage to the subjects of reservation, but also drastically
handicaps the number of vacancies held for the general category. Although the court disallowed
the same in 1995, they merely made provisions for preventions of excessive carry over, thus
still leaving room for some degree of carry forward effect. Both of these essentially complicate
the issue of excessive reservation, even if there exists a rational nexus for the same. 8
For both of these reasons, the author believes that the policy of the TRS regarding provision of
12% reservation is not permissible by law.
Finally, the author would like to deal with K.Kavithas proposal to initiate an exodus of
Seemandhra employees back to their state of origin. The author believes that this is not a feasible
option as it sends out a negative message of encouraging unconstitutional and intolerant
behaviourr on the part of the state. Under article 16 clause 1, the constitution guarantees equality
of opportunity for all citizens. In India, citizens are free to reside in any place and practice any
profession that they are qualified to profess without prejudice based on their area of origin. Also,
as the author has previously explained, article 16(2) prohibits the sate from making any
classification based on only place of origin.
While article 16 does not prohibit the State from making a selection from numerous candidates
offering themselves for employment, the selection test must not be arbitrary. If the selection
criteria is does not have a reasonable nexus behind it, then it may very well be declared as
unconstitutional. The qualifications for any occupation may, besides mental excellence, include
physical fitness, sense of discipline, moral integrity and loyalty to the state. Technical
qualifications and standards may be specified where applicable.9 Therefore it is evident that the
criteria of place of residence which the government of telengana is trying to uphold as a
qualification for appointment to government posts is arbitrary in nature and cannot be upheld.
Also, all matters in relation to employment both prior and subsequent to the employment which
are incidental to the employment and form part of the terms and conditions of such employment
must be included within the ambit of matters which relate to employment or appointment.

India Today, SC/ST Quota Fails The Bill, Rajeev Dhavan

S. Thakur v. State of Bihar AIR 1957 Pat 617

Arbitrary enforcement of a service condition terminating the service period of an employee

without prior notice may in itself be treated as denial of equality under Articles 14 and 16 (1).10

Therefore, the Seemandhra government employees currently working in Telangana cannot be

detached from their jobs and sent back to their State of origin merely on based the on the
arbitrary criteria of residency.
As the author has previously mentioned, there are certain criterion under clause 2 of article 16
that have been expressly prohibited by the constitution to be used as criterion for classification,
one of which is place of birth. Therefore it is evident that the demands of TRS are not
sufficiently backed by a reasonable nexus and have no constitutional base either. It may thus be
inferred that the policy of the TRS as a whole is unconstitutional and is not in accordance with
the march of law that has been established in this country.

Submitted By:

Submitted To:

Reshma Ravipati

Ms.Aakanksha Kumar

Semester I

Faculty of

B.B.A L.LB(Hons.)

Constitutional Governance I

10

Govt. Branch Press v. D.B. Beliappa AIR 1979 SC 429