Author Name:   rahulshrivastava

This article describes the policy of Protective Discrimination or 'reservations', now rampant in India. It further illustrates the history, legality and extent of such reservations as guidelined by the apex court from time to time...

Protective Discrimination And Tribal Welfare In India

The word “reservation” has attained a particular legal significance in matters relating to public employment. The concept is founded on separating individuals or groups having certain characteristics (pertaining to backwardness as per Articles 15(4) & 16(4)) from the general category of candidates and conferring on them the benefit of special treatment. It is discrimination made in favor of the backward classes vis-à-vis the citizens in general and has been referred to as ‘Compensatory discrimination’ or ‘Positive Discrimination’.

Constitutional Mandate
The Constitution of India has provided, among other various protections and safeguards, safeguards for Public employment to the persons belonging to the Scheduled Castes and Scheduled Tribes, keeping in view the discrimination and disabilities suffered by these classes to catch up and compete successfully with the more fortunate ones in the matter of securing public employment. Specific provisions for reservations in services in favour of the members of Scheduled Castes and Scheduled Tribes have been made as follows in the Constitution of India:-

Article 16(1): There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

Article 16(4): Article 16 provides for equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State, Nevertheless, “nothing in this Article shall prevent the State from making any provision for the 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 services under the State”.There have been two Constitution Amendments incorporated in Article 16(4), they are:-

Article 16 (4-A) : Nothing in this article shall prevent the state from making any provision for reservation in matters of promotions, with consequential seniority, to any class or classes of posts in services under the state in favour of SCs/STs which in opinion of state, are not adequate by represented in the services under the state.

The 77th Amendment to the Constitution has been brought into effect permitting reservation in promotion to the Scheduled Castes and Scheduled Tribes.

Thus, by amending the Constitution, the Parliament has removed the base as interpreted by Supreme Court in Indira Sawhney that the appointment does not include promotion. Article 16(4A) thus revives the interpretation put on Article 16. Rule of reservation can apply not only to initial recruitments but also to promotions. But no promotion can be made in promotion posts for the OBC’s.

The Supreme Court has emphasized that Article 16(4A) ought to be applied in such a manner that a balance is struck in the matter of appointments by creating reasonable opportunities for the reserved classes as well as for the other members of the society.

Article 16 (4-B): “Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.”

The Constitution (Eighty- First Amendment) Act, 2000 has added Article 16(4B) to the Constitution. The Amendment envisages that the unfilled reserved vacancies are to be carried forward to the subsequent years and these vacancies are to be treated as distinct and separate from the current vacancies during any year. The rule of 50% reservation laid down by the Supreme Court is to be applied only to normal vacancies. This means that the unfilled reserved vacancies can be carried forward from year to year without any limit, and are to

be filled separately from the normal vacancies. This Amendment also modifies the proposition laid down by the Supreme Court in Indira Sawhney.

Article 335: This article provides that “the claims of the members of the SCs and STs shall be taken into consideration,consistently with the maintenance of efficiency of administration in the making of appointments in services and posts in connection with the affairs of the Union or of a State”.

Reservation For Backward Classes In India
Article 16(4):- This clause (4) expressly provides for the 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 services under the state. Here the term state denotes both Central and state governments and their instrumentalities.

The power conferred on the State can only be exercised in favour of a backward class and therefore, whether a particular class of citizens is backward, is an objective factor to be determined by the state.

It was held in Triloki Nath v. State of J & K[1],that State determination must be justiciable and may be challenged if it is based on irrelevant considerations.

In Mohan Kumar Singhania v. Union of India[2], 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 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. The state government takes the total population of the backward class and their representation in the state services and after doing the necessary exercise makes the reservation and provides the percentage of reservation for the posts, then the percentage has to be followed strictly.

What Are “Backward Classes” U/Art. 16(4) Of The Constitution?
There was an overwhelming majority in the nation that was still backward – socially, economically, educationally, and politically. These victims of entrenched backwardness comprise the present scheduled castes (SC), scheduled tribes (ST) and other backward classes (OBC). Even though, these classes are generically the "Backward Classes,” the nature and magnitude of their backwardness are not the same.

The words ' "backward class of citizens" occurring in Article 16 (4) are neither defined nor explained in the Constitution though the same words occurring in Article 15 (4) are followed by a qualifying phrase, "Socially and Educationally'' backward classes.

In the course of debate in the Parliament on the intendment of Article 16 (4), Dr. B.R. Ambedkar, expressed his views that “backward classes” are which nothing else but a collection of certain castes.

Incidentally, it is also necessary to point out that the Supreme Court in all its decisions on reservation has interpreted the expression `backward classes' in Article 16 (4) to mean the "socially and educationally" backward. It also emphatically rejected "economic backwardness" as the only or the primary criterion for reservation under article 16 (4) and observed that economic backwardness has to be on account of social and educational backwardness. The true meaning of this expression has been considered in a number of cases by the Supreme Court starting from Balaji to Indira Sawhney.

In M.R. Balaji v. State of Mysore,[3] it was held that the caste of a group of persons cannot be the sole or even predominant factor though it may be a relevant test for ascertaining whether a particular class is backward or not. Thetwo tests should be conjunctively applied in determining backward classes: one, they should be comparable to the Schedule Castes and Schedule Tribes in the matter of their backwardness; and, two, they should satisfy the means test, that is to say, the test of economic backwardness laid down by the State government in the context of the prevailing economic conditions. Poverty, caste, occupation and habitation are the principal factors contributing to social backwardness.

In R. Chitralekha and Anr. v. State of Mysore and Ors.[4] and Triloki Nath v. J & K State[5]and K.C. Vasanth Kumar v. Karnataka [6]
The apex Court explaining the meaning of ‘Class’ observed that “The quintessence of the definition of “Class” is that a group of persons having common traits or attributes coupled with retarded social, material (economic) and intellectual (educational) development in the sense not having so much of intellect and ability will fall within the ambit of 'any backward class of citizens' under Article 16 (4) of the Constitution.”

Further in R. Chitralekha v. State of Mysore[7], it was stated that:

“...what we intend to emphasize is that under no circumstances a "class" can be equated to a "caste", though the caste of an individual or a group of individual may be considered along with other relevant factors in putting him in a particular class.”

In State of Andhra Pradesh v. P. Sagar, [8] it has been observed that:
The expression "class" means a homogeneous section of the people grouped together because of certain likenesses or common traits and who are identifiable by some common attributes such as status, rank, occupation, residence in a locality, race, religion and the like. In determining whether a particular section forms a class, caste cannot be excluded altogether. But in the determination of a class a test solely based upon the caste or community cannot also be accepted.

In Triloki Nath v. J & K State (II)[9]Shah, J., speaking for the Constitution Bench has reiterated the meaning of the word 'class' as defined in the case of Sagar and added that "for the purpose of Article 16 (4) in determining whether a section forms a class, a test solely based on caste, community, race, religion, sex, descent, place of birth or residence cannot be adopted, because it would directly offend the Constitution.

The expression ‘backward class’ is not used as synonymous with ‘backward caste’ or ‘backward community’. The members of an entire caste or community may in a social, economic and educational scale of values at a given time be backward and may on that account be treated as a backward class, but that is not because they are members of a caste or community, but because they form a class.

In A. Peeriakaruppan, etc. v. State of Tamil Nadu [10]
The Supreme Court observed that “A caste has always been recognised as a class. If the members of an entire caste or community at a given time are socially, economically and educationally backward that caste on that account be treated as a backward class. This is not because they are members of that caste or community but because they form a class.”

Chief Justice Ray in Kumari K.S. Jayasree and Anr. v. The State of Kerala and Anr.[11] was of the view that “In ascertaining social backwardness of a class of citizens it may not be irrelevant to consider the caste of the group of citizens. Caste cannot however be made the sole or dominant test...”

In Indira Sawhney and Ors. Vs. Union of India and Ors.[12] , the Court observed that:-

The meaning of the expression “backward classes of citizens” is not qualified or restricted by saying that it means those other backward classes who are situated similarly to Scheduled Caste and/or Scheduled Tribes. Backwardness being a relative term must in the context be judged by the general level of advancement of the entire population of the country or the State, as the case may be.
There is adequate safeguard against misuse by the political executive of the power u/Art. 16(4) in the provision itself. Any determination of backwardness is neither a subjective exercise nor a matter of subjective satisfaction. The exercise is an objective one. Certain objective social and other criteria have to be satisfied before any group or class of citizens could be treated as backward. If the executive includes, for collateral reasons, groups or classes not satisfying the relevant criteria, it would be a clear case of fraud on power.

‘Caste’ neither can be the sole criterion nor can it be equated with 'class' for the purpose of Article 16 (4) for ascertaining the social and educational backwardness of any section or group of people so as to bring them within the wider connotation of 'backward class'. Nevertheless 'caste' in Hindu society becomes a dominant factor or primary criterion in determining the backwardness of a class of citizens.

Unless 'caste' satisfies the primary test of social backwardness as well as the educational and economic backwardness which are the established and accepted criteria to identify the 'backward class', a caste per se without satisfying the agreed formulae generally cannot fall within the meaning of 'backward class of citizens' under Article 16 (4), save in given exceptional circumstances such as the caste itself being identifiable with the traditional occupation of the lower strata - indicating the social backwardness. And ‘Class’ has occupation and Caste nexus; it is homogeneous and is determined by birth. It further approved Chitralekha case.
Further in case of Jagdish Negi v. State of U.P.Jt [13] Court held “Backwardness is not a static phenomenon. It cannot continue indefinitely and the State is entitled to review the situation from time to time.”

Part III Of The Constitution In Relation To Reservation In Public Services
Article 14 is in general terms whereas Arts. 15 and 16 are of specific nature. Shortly put the combined effect of Arts. 14, 15 and 16 as far as public employment is concerned, is that they guarantee non-discriminatory treatment of citizens in matters relating to public employment. Religion, race, caste, sex, descent, place of birth, residence or any of them cannot be the basis for discrimination against a citizen in matters relating to public employment or office under the state.

Reservation in favour of backward classes of citizens is dealt with by cl. (4) of Art.16. It is an enabling provision and is in the nature of a provision or an exception to cl. (1) of Article 16 of the Constitution?

Whether Art.16 (4) An Exception To Art.16 (1)?
Although cl. (4) has an over-riding flavour as the opening words “Nothing in the Article shall prevent the State from……….”, suggest as Mudholkar, J. referring to these words in Devdasan pointed out: The over-riding effect of cl.(4) on cls. (1) and (2) could only extend to the making of a reasonable number of reservation of appointments and posts in certain circumstances. That is all”.

The view in T.Devadasan v. Union of India,[14] that Art. 16(4) was an exception to Art. 16(1) received a severe setback from the majority decision in State of Kerala v. N.M. Thomas,[15] which held that 16(4) was not an exception to Art.16(1) but that it was merely an emphatic way of stating a principle implicit in Art.16(1). The view taken in N.M Thomas has been accepted as the correct one and by the majority in Indira Sawhney where the Court pointed out: “Indeed, even without clause (4), it would have been permissible for the State to have evolved such a classification and made a provision for reservation of appointments/posts in their favour. Clause (4) merely puts the matter beyond any doubt in specific terms.”

Article 16(4) And Article 335
Article 335: provides that “the claims of the members of the SCs and STs shall be taken into consideration, consistently with the maintenance of efficiency of administration in the making of appointments in services and posts in connection with the affairs of the Union or of a State”.

There has been some debate as to whether Art.335 had any limiting effect on the power of reservation conferred by Art. 16 (4). The nine judge bench of the Supreme Court in Indira Sawhney considered the argument that the mandate of Art.335 implied that reservation should be read subject to the qualification engrafted in Art.335 i.e. consistently with the maintenance of efficiency of administration. Dealing with the argument majority framed an issue as to whether reservations were anti-meritarian? The majority then observed that may be efficiency, competence and merit are not synonymous concepts; may be it is wrong to treat merit as synonymous with efficiency in administration and that merit is but a component of the efficiency of an administration.

Even so the relevance and significance of merit at the stage of initial recruitment cannot be ignored. It cannot also be ignored that the very idea of reservation implies selection of a less meritorious person. At the same time, we recognise that this much cost has to be paid, if the constitutional promise of social justice is to be redeemed. We also firmly believe that given an opportunity, members of these classes are bound to overcome their initial disadvantages and would compete with-and may in some cases, excel members of open competitor candidates. It is undeniable that nature has endowed merit upon members of backward classes as much as it has endowed upon members of other classes and what is required is an opportunity to prove it.

But in case of Article 16, Article 355 would be relevant. It may be permissible for the government to prescribe a reasonably lower standard for scheduled castes/Scheduled tribes/backward classes consistent with the requirements of efficiency of administration. It would not be permissible not to prescribe any such minimum standard at all. While prescribing the lower minimum standard for reserved category, the nature and duties attached to the post and the interest of the general public should also be kept in mind. While on Article 355, we are of the opinion that there are certain services and positions where merit alone counts. In such situations, it may not be advisable to provide for reservations. For example technical post in Research and Development organisations/departments/institutions, superspecialities in medicine, engineering etc.

Cent Percent Reservation Not Permissible:
No cent percent reservation
The state is not entitled to make a cent percent reservation. That would be violative of Art.16 of the Constitution. The Supreme Court has ruled time and again, that where there is no only one post in the cadre, there can be no reservation for the backward class with reference to that post either for recruitment at the initial stage or filling up a future vacancy in respect of that post otherwise the same would amount to 100 per cent reservation. A single promotional post can also not be reserved.

Application of Rotational Rule
In case of Post Graduate Institute of Medical Education & Research, Chandigarh[16] it has been categorically stated that unless there is plurality of posts in a cadre, the question of reservation will not arise because any-attempt at reservation by whatever means and even with device of rotation of roster in a single post cadre is bound to create 100% reservation of such post whenever such reservation is to be implemented.

The extent of reservation should not exceed 50%

In Indira Sawhney case the majority pointed out that cl. (4) of Art. 16[17] spoke of adequate representation and not proportionate representation-although the proportion of population of backward classes to the total population would a relevant factor. After referring to the earlier decisions of the Court, the majority concluded that the reservation contemplated in cl. (4) of Art. 16 should not exceed 50%. It also pointed out that for the purpose of applying the rule of 50%, a year should be taken as the unit and not the entire strength of the cadre.

Concept Of Creamy Layer:
In the case of Indra Sawhney and others v/s Union of India[18] petitioner’s argument was that some members of designated backward class are highly advanced socially as well as economically and educationally and this upper crust or forward, among backward are lapping up all the benefits of reservation meant for that class without allowing benefits to reach the truly backward members of that class. The petitioner relied on K. S. Jayasree V/s State of Kerala[19] case wherein the Supreme Court had approved the Kerala scheme to keep certain classes out from the reservation benefit by fixing economic ceiling. Case of State of Kerala V/s N. M. Thomas[20], was also cited where Krishna Iyer, J. pointed out one of the dangers of reservation to be that, “its benefits, by and large, are snatched away by the top creamy layer of the ‘Backward Caste’ or class keeping away weak and leaving the fortunate layers to consume to the whole cake.” Therefore seed of concept of creamy layer has been found in above cases before the Indra Sawhney case.

In Indra Sawhney case the first and foremost issue in this respect to be decided was; whether the philosophy of creamy Layerisation would be limited to OBCs only or would include Scheduled Castes and Scheduled Tribes also, for whom reservational benefit had been given since long and there have been eyebrow of elitists since long as the issue of reservation on Central Services for OBCs was not in contemplation. The second issue was; who were the opponents of giving benefits to all OBCs including their upper crust and was it advisable to declare the upper crust of OBCs outside the purview of reservation side by side the vacation of stay order against the union policy?

As to the first issue Chief Justice Kania and Venkatachaliah, Ahmadi and Jeevan Reddy, JJ had observed in running way, i.e. this discussion is confined to other Backward Classes only and has no relevance in the case of Scheduled Castes and Scheduled Tribes[21].

Although in M. Nagraj & others v/s Union of India & others[22] case with five judges bench observed that concept of creamy layer could be applied in case of SCs and STs also. But Attorney General Milon Banerjee said that here court’s view is obiter dicta and it is not part of decision. While in Indra Sawhney case decision was given by nine judges’ bench that principle of creamy layer is applicable only on OBCs, whereas in Nagraj case decision is given by five judges bench. And there is another precedent that a similar panel could not overturn a larger bench’s verdict.

Recently in Ashok Kumar Thakur v/s Union of India[23] five judges bench laid down that ‘creamy layer’ principle is one of the parameters to identify backward classes. Therefore, principally, the ‘creamy layer’ principle cannot be applied to SCs and STs, as SCs and STs are separate classes by themselves. Principle of‘ creamy layer’ applicable to OBCs, as Chief Justice K.G. Balakrishnan[24] stated: "by excluding those who have already attained economic well-being or educational advancement, the special benefits cannot be further extended to them and, if done so, it would be unreasonable, discriminatory or arbitrary resulting in reverse discrimination. But this logic is applied exclusively for OBCs and the logic is not applied for SCs, STs & the unreserved category seats. The criterion is also not applicable to minority institutions. He further said that we are bound by larger bench decision of the Supreme Court in Indra Sawhney case. This observation had been criticized severally that if the rule of skimming off of upper crust of OBCs is pleaded how it may not be applied to SCs /STs. Mr. K.C. Yadav[25] who challenges the discriminatory use of Creamy Layer formula; said Art.16 (4) takes care of the Backward Classes as a genus of which the Scheduled Castes, Scheduled Tribes and Other backward Classes constitute different species. There is no churning out of the ‘creamy layer’ from the Schedule Caste and Scheduled Tribes in matter of job reservation. Why should the other Backward Classes be subjected to this discriminatory provision”? Mr. B.K. Roy Burman[26], one of the members of the Mandal Commission, has also repeated the same charge; “if there is no question of identifying the ‘creamy layer’ among the Scheduled Castes, Scheduled Tribes, why there should be an effort to do so in relation to the Other Backward Classes”. India, therefore, has faced a war between legislature vs judiciary whereby the will of the legislature is undermined by the utopian concepts / perception of the supreme court. It is another debate can the judiciary impose any policy upon the government or the legislature. Whether a socially and educationally backward child can be denied the constitutional upliftment by a bench interpreting the constitution for the reason that his / her parents managed to get a combined yearly income of 4.5 lakh is another pandora’s box since the "exclusion concept" is used to discriminate within OBCs only.

Conclusion
The reservation policy in India in all sectors has become a disturbing and cyclical process. Initially with the introduction of constitution it provided reservation for only SC’s and ST’s but later on OBC were included and now the other minorities are demanding reservation as well, which would ultimately lead to a situation where the seats left for the majority would not be proportional with their population. This therefore, becomes an unending issue, rather than an equal opportunity issue.

Commenting upon the programme of development of the tribals, Nehru advised that we should approach the tribal people with affection and friendliness and go to them as liberating forces. They should be sure that we want to give them something and not to take away something from them. This is the best way to create psychological integration between tribals and others who may be traders, businessmen or administrators. There must not be drastic uprooting of tribals from their habitat. We have to understand tribals psyche and have to give them due respect and honour their culture.

l. People should develop along the lines of their own genius and we should avoid imposing anything on them. But rather try to encourage in every way their own traditional ails and culture.
2. Tribal’s rights in lands and forests should be respected.
3. We should try to train and build up a team of their own people to do administration and development.
4. We should rather work through and not in rivalry-to, their own social and cultural institutions.
5. We should judge results 110t by statistics or the amount of money spent but by the quality of human character that is evolved.

It’s not that only developing or underdeveloped countries are facing sociological problems because these problems still persist in the most developed nation in the world like that of USA. But in USA there is no reservation policy as such and there is an affirmative action program for the minorities and especially for the African-Americans. India being a developing country is slogging in almost all facets to achieve its 2020 mission but for that there is a serious need for reconsideration of the reservation policy in India because the reservation policy compromises with the efficiency of a Country by not sincerely recognizing the merits of backward classes which therefore hamper the development of a country. Thus reservation alone can’t be a solution and there must be a swift implementation of affirmative action programme in India especially when it comes to reservation in employment.
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[1] AIR 1967 SC 1283
[2] AIR 1992 SC 1
[3] AIR 1960 SC 649
[4] 1964 (6) SCR 368
[5] 1969 (1) SCR 103
[6] 1985 Supp. (1) SCR 352
[7] 1968 (3) SCR 595
[8] 1969 (1) SCR 103
[9] 1971 (2) SCR 430
[10] 1971 (2) SCR 430
[11] 1977 (1) SCR 194
[12] 1992 Supp (3) SCC 212
[13] AIR 1997 SC 3505
[14] AIR 1964 SC 179
[15] AIR 1976 SC 490
[16] 1998 (4) SCC 1
[17] Supra at note2
[18] AIR 1993 SC 477.
[19] 1979, 3 SCC 730.
[20] AIR 1976 SC 490.
[21] Mandal Case, Para 792.
[22] (2006) 8 SCC 212
[23] (2008) 6 SCC 1.
[24] First Chief Justice of India belongs to Scheduled Cast.
[25] K. C. Yadav, Flaws in the Creamy Layer Concept, The times of India, 7 October 1993, p.10.
[26] The Times of India, March 12, 1993, p.3.

The  author can be reached at: rahulshrivastava@legalseviceindia.com

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