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Reservation Factors in India: Criterion or Criteria?

M Drushika is a 2nd-year law student from Symbiosis Law School, Hyderabad. Any discussion related to the paper can be made via mail at m.drushika@gmail.com.

Header Image Credits: Pexels Free Photo


Introduction

Reservation was always a contentious issue in India. It is not a new concept in India and has been practised since kings ruled the nation. There have been several instances of the practice of reservation in Indian history, beginning in 1902 where Shahu, Kolhapur’s King, instituted an educational quota for backward and non-Brahmin castes.[1] During the colonial era, in 1932, British Prime Minister Ramsay Macdonald presented the Communal Award, which established the reservation system in its complete form.[2] Caste-based reservation continued in India despite the opposition of the country’s main socioeconomic forces. Seats were allocated for Scheduled Castes and Tribes in the post-Constitution period, beginning in 1950. On the Mandal Commission’s recommendations, OBCs were included in the scope of reservation in 1991.  Reservations were initially focused on caste and religion, but they were also based on gender and economic factors as days progressed. As per Article 46 of the Indian Constitution, the State is obliged to foster the economic and educational pursuits of the weaker parts of the population and safeguard them from injustice.[3] As a result, the President has been given the constitutional right to provide reservations to specific castes, tribes, or classes to encourage them to pursue their goals.[4] However, the question arises what the criterion should be for these reservations? Furthermore, before 1960, the original Indian Constitution only allowed for quotas in legislatures for ten years, but this was extended after modifications to the Constitution.[5]  Nonetheless, the Indian Courts did not have fixed criteria for reservation.

Pichra Warg Kalyan Mahasabha Haryana v. the State of Haryana[6]

Background of the Case

The Haryana Second Backward Classes Commission was established in 1993 to define the criteria. The report submitted that the benefit of reservation would not be extended to the people listed in Annexure “A” to the circular issued by the Government dated June 7, 1995.[7] The said Annexure “A” included the (i) children of those who held various Constitutional Posts, (ii) children of persons belonging to a family that owned more than the permissible land under the Haryana statute, (iii) children of people with net yearly revenue Rs. 1 lakh or more for three successive years. In August 2010, the income limit was further raised to Rs. 4.5 lakh for ascertaining the creamy layer among backward classes. The Haryana Backward Classes Act, 2016, allowed admittance to academic institutions and service reservations for people from the State’s backward classes. According to Section 5(1) of the 2016 Act, no individual from the creamy layer of the backward classes would be considered for admission to educational institutions or government positions against seats designated for backward classes.[8] As per Section 5(2), the Government was directed to designate people of backward classes as “creamy layer” only after considering the social, economic and other relevant factors.[9] Following these directions, the State Government issued a notification on August 17, 2016, outlining the conditions for excluding “creamy layer” from the backward classes. Children of people with a gross yearly income of up to Rs. 3 lakhs would, according to the announcement, be given priority in admittance of educational institutions and services.The remaining quota would be for backward classes earning more than Rs. 3 lakhs but less than Rs. 6 lakhs per year. Section 5 of the 2016 Act defines the “creamy layer” as members of the backward classes who earn more than Rs. 6 lakhs per year.

Judgment by the Hon’ble High Court

Students who applied for MBBS admission under the backward classes’ quota for 2018-2019 filed writ petitions in the Punjab and Haryana High Court, contesting the August 17, 2016 notification. The petitioners’ main issue was the sub-classification of backward classes, with a section of each backward class group receiving priority in the reservation. The notification dated August 17, 2016, was found to be arbitrary and violated Article 14 of the Constitution by the High Court. The High Court ruled that student counselling be performed under the same criteria as before the 2016 Act. The Haryana government appealed the High Court’s ruling in the Supreme Court, which dismissed the appeal. Following an opinion from the Advocate General of Haryana, the State Government issued a notice defining the criterion for determining annual income as yearly gross income, which includes all sources of revenue. The stated notification of August 28, 2018, reversed all previous announcements and directions that allowed for an alternative way of calculating yearly income. The validity of the announcements dated August 17, 2016, and August 28, 2018, was challenged. The High Court acknowledged both notices and determined that the “creamy layer” requirement was in the best interests of individuals from marginalized communities who needed reservations. In this judgement, the High Court held that, under the 2016 Act, the State Government has the authority to consider gross yearly revenue from all sources in determining the parameters for defining “creamy layer”.

Judgment by the Hon’ble Supreme Court

This notification was challenged in the Apex Court by an Organization named “Pichra Warg Kalyan Mahasabha Haryana”. They argued that the Act requires that social, economic, and other aspects be considered when determining the criteria for exclusion and designation of people from the backward classes as “creamy layer”. The judgment was delivered by a divisional bench consisting of Justices Aniruddha Bose and L. Nageswara Rao.  The bench held that The State of Haryana has attempted to identify creamy layers from backward classes purely based on the economic criterion and has made a severe mistake. Thus, the notification was set aside. The Court granted three months to the State Government to publish a new notice based on the guidelines and standards set out in “Indra Sawhney-I” and Section 5(2) of the 2016 Act for identifying “creamy layer”.

Relevant Judicial Decisions

“Indra Sawhney v. Union of India”[10]

The SC ruled that, for Article 16(4), backward classes can be sub-classified into more backward classes but that the reservation cannot exceed 50% as a result of sub-classification. The State has the authority to assess the socially and educationally disadvantaged individuals’ eligibility year after year. The distinction between more backward classes should be formed based on levels of social backwardness. Reservation policies must be implemented year after year, and they cannot be indefinite. Furthermore, it has been decided that as per Article 15(4), the proportion of reservations does not have to be equivalent to the proportion of the backward classes’ population in the general population.

“Balaji v. State of Mysore”[11]

The Mysore Government issued an order under Article 15(4), reserving seats in medical and engineering institutes for SCs, STs, Backward Classes, and More Backward Classes. As a result, 68% of the college’s seats were reserved, leaving only 32% for the merit pool. Due to a government order, some candidates who scored higher than those accepted under the quota were denied entrance. According to the Court, the order’s division of backward and more backward groups was not permissible under Article 15(4) as backwardness must be educational and social order. Thus, the order was held invalid.

“State Of AP v. U.S.V. Balram”[12]

The Apex Court held that caste could not be considered the sole basis for evaluating a backward community. However, if the whole caste is found to be educationally and socially backward, their incorporation in the backward classes’ list would not violate Article 15(4) of the Constitution. Additionally, it does not entail that once a caste is labelled as backward, it will remain so indefinitely. Suppose a scenario occurs in which candidates from groups on the list of backward classes can gain more seats on their merit. In that case, it is the Government’s responsibility to evaluate the further reserve of seats for such groups.

“Chitralekha v. State of Mysore”[13]

The Court affirmed a government order that defined backwardness using criteria other than caste, including occupation, income, and other economic variables, rather than caste. While caste may be necessary for determining backwardness, the Court decided that excluding caste from the equation does not invalidate the categorization provided other criteria are met.

Conclusion

For ages, reservations in India were primarily dependent on a sole criterion, i.e., based on caste. However, the reservation’s potential benefits were gradually distributed to only a few groups, excluding the genuinely deserving people.As a result, Indian Courts, through various judgements, held that reservations should be granted based on several factors rather than just one. Therefore, it is imperative to examine all suitable and necessary characteristics to identify socially progressive creamy layered groups from the Backward Class Groups.


[1] Ian Copland, The Maharaja of Kolhapur and the Non-Brahmin Movement, 7(2) Modern Asian Studies  209, 218 (1973).

[2] Bidyut Chakrabarty, The Communal Award of 1932 and Its Implications in Bengal, 23(3) Modern Asian Studies 493, 494 (1989).

[3] India Const. art. 46.

[4] India Const. art. 341; India Const. art. 342; India Const. art. 342A.

[5] India Const. art. 334, amended by The Constitution (One Hundred and Four Amendment) Act, 2020.

[6] Pichra Warg Kalyan Mahasabha Haryana v. the State of Haryana, 2021 SCC OnLine SC 635.

[7] Rajeev Ranjan et. al., Compendium of Instructions on Reservation, 1 Chief Secretary General Administration Department 1, 57 (2009).

[8] Haryana Backward Classes (Reservation in Services and Admission in Educational Institutions) Act, 2016, § 5(1), No. 15 of 2016, India Code (2016).

[9] Haryana Backward Classes (Reservation in Services and Admission in Educational Institutions) Act, 2016, § 5(2), No. 15 of 2016, India Code (2016).

[10] Indra Sawhney v. Union of India, AIR 1994 SC 477.

[11] Balaji v. State of Mysore, AIR 1963 SC 649.

[12] State Of AP v. U.S.V Balram, AIR 1972 SC 1875.

[13] Chitralekha v. State of Mysore, 1964 AIR 1823.

Views expressed are personal.

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