Constitutional basis of Reservation [RCS 2/4]

In this article we will discuss the ‘Constitutional basis of reservation in india’ and try to understand its various important aspects. Read full article to understand it properly.

For the sake of understanding, this entire article has been divided into four main parts. This is the second part of it. Before reading this, you must read the first part of it, there we understood the basic element of reservation in India ^{[1/4] .}

In the coming article, we will understand the order of evolution of reservation ^[3/4] and roster system: the math behind reservation ^[4/4] , so study all the related articles for better understanding.

Since the entire reservation system revolves around Fundamental Rights (especially the Right to Equality), we suggest that you at least have a look at the Fundamental Rights for a better understanding.

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Chapters of Content

| Constitutional basis of reservation in India

When the country became independent, India was not in such a position that everyone should be treated as equal at once, and everything should be allowed to go on like this.

After hundreds of years of slavery and the loss of immeasurable resources, India was a poor, helpless and suffering from many social deformities. In such a situation, one of the many important tasks that the policy-makers of that time had to do was to bring everyone on one ground by any means. Because the ideals and goals with which India fought the freedom struggle, equality and justice were its core elements.

For equality it was necessary that there should be justice for those individuals, communities and sections of the society, which in slave India could never come out of poverty, exploitation, filth, oblivion and misery. And for justice it was necessary that something special should be done in favor of these people.

The framers of the constitution were not unaware of this. That is why it has been mentioned in the constitution itself, so that the government can take some special steps in favor of such people.

In the previous article, we understood how under Article 14 and especially Article 15 and 16, affirmative action or reservation was arranged in favor of the backward sections of the society. Special facilities were given to the minority sections of the society under Article 29 and 30 so that they could join the main stream of the society while preserving their culture with values and beliefs.

Over time, as felt, the scope of reservation was expanded, such as to provide reservation in Panchayats and Municipalities, to give constitutional basis to a category like OBC, etc.

To make the constitutional basis of reservation simple and clear, we divide it into four parts –

(1) Reservation of SC and ST in Lok Sabha and State Legislative Assemblies
(2) Reservation of SC, ST and women in Panchayats and Municipalities
(3) Reservation in admission to various educational institutions and,
(4) Reservation in respect of post or appointment .

Remember here that in the context of SC and ST, if we talk about its reservation in Lok Sabha and State Legislature, then a separate constitutional arrangement for this is found in Article 330 and Article 332. That is why there is no special relation with the reservation given in appointment, post or admission.

| Reservation of SC and ST in Lok Sabha and State Legislative Assemblies

Article 330 in the Lok Sabha and Article 332 in the state legislatures deals with reservation for SCs and STs. Both these Articles broadly state that – with reference to the Lok Sabha or the State Legislatures, the ratio of the number of seats reserved for SCs and STs in a State or Union territory; The total number of seats allotted to that State in the Lok Sabha or in the State Legislatures shall, as far as possible, be the proportion of its population to the total population of that State. [Given this with the example given below]

Q. How many seats of SC and ST will be reserved in which state; How is it determined?

To understand this let us take the example of Bihar, where there are 40 Lok Sabha seats. About 15 percent of the total population of Bihar comes under the SC category, so it means that there will be reservation of SC seats on 15 percent of the 40 seats; That is, on 6 seats, and it will be where its population is.

At the same time, about 1 percent of the total population of Bihar comes in the ST category, that is why the ST category in Bihar does not get any reservation in the Lok Sabha. To get at least 1 seat, there should be at least 2.5 to 3 percent ST population.

Article 332, tells about the reservation of SC and ST category in the Vidhan Sabha and its provision is the same as in the case of Lok Sabha.

For example, if we look at Bihar, there are 243 seats in the Vidhan Sabha and as we talked about above, the population of the SC category is about 15% of the total population of Bihar and the population of ST is a little more than 1 percent. That is why out of 243 seats in Bihar assembly, 38 seats are reserved for SC while 2 seats are reserved for ST.

Overall, as per 2001 census, the percentage of SC in the population of the whole country is about 16 and the percentage of ST is about 8; Accordingly, roughly 131 seats out of the total 543 seats in the Lok Sabha are reserved for SCs and STs.

[In the case of Vidhan Sabha, we have taken the example of Bihar, if you take the example of any other state, then there may be maximum reservation of ST seats in some state, and SC in some state.]

[Here Remember this

* Census 2001 is used for counting of seats. And till the first census is not done after 2026, this census will be the basis of reservation.

* After the delimitation of 2008, out of 543 Lok Sabha seats, 84 seats are reserved for SC category and 47 seats are reserved for ST category. This does not mean that people belonging to SC and ST category cannot contest elections on other seats. Yes, where these seats are reserved and candidates from other categories cannot contest on these seats. Ordinary people can contest elections only on 412 seats.

*[There is no system of reservation for women in Lok Sabha and Vidhan Sabha. However, in local self-governments such as panchayat and municipal elections, women get 1/3 percent reservation. What is the point of this, let’s understand]

| Reservation of SC, ST and women in Panchayats and Municipalities

Part 9 of the Constitution deals with Panchayats and Part 9 ‘A’ deals with Municipalities. Reservation in Panchayat is available under Article 243 ‘D’ and in Municipality under Article 243 ‘T’. Both the articles broadly say the same thing with respect to Panchayat and Municipality respectively and that is,

“In every Panchayat and Municipality, there shall be reservation of seats for the Scheduled Castes and the Scheduled Tribes. and the proportion of these reserved seats to the total number of seats in that Panchayat or Municipality shall, as far as possible, be the same as the proportion of SCs and STs in the population of that Panchayat or Municipality. And out of those reserved seats, one-third of the seats will be reserved for women belonging to SC and ST category.

[For example, if 12 seats are to be contested in a Panchayat or Municipality and that area has 50 percent SC and ST category, then 6 seats will be reserved for SC and ST. And out of these 6 seats, 2 seats will be filled by women of SC or ST.]

Secondly, one-third of the total seats in each Panchayat or Municipality are reserved for women. And it also includes the seats to be filled by women of SC and ST category.

[As in the example above, out of the total 12 seats, 4 will be filled by women, as 1/3 of the seats should be women. But as we saw above 2 seats have already been filled by women of SC and ST category so now the remaining 2 seats which will be filled by women of general category in general seats. However, if the state assembly wants, the remaining 2 seats can be reserved for OBC women.]

So overall till now we have understood that who gets reservation in Lok Sabha, Vidhan Sabha, Panchayat and Municipality and who does not. Let us now understand the constitutional basis of mainstream reservation. That is, reservation in admission in colleges and universities, etc., and reservation in relation to any post or appointment.

| Constitutional basis for reservation in admission

Article 30 provides that all minorities shall have the right to establish and administer educational institutions of their choice. Here minority means Muslims, Sikhs, Buddhists, Jains, Parsis and Christians. This article is completely dedicated to minorities, that is why 100% reservation in these institutions belongs to these people.

Apart from this, under Article 46, it has been said to promote the educational and economic interests of SCs and STs and weaker sections.

Under this, it is the duty of the state to promote with special care the educational and economic interests of the weaker sections of the people, especially the SCs and STs; and will protect him from social injustice and all forms of exploitation.

Under this, reservation can be arranged but the problem is that, the Directive Principle of State Policy (DPSP), is not a fundamental right; Therefore it cannot be demanded as a right. But this article definitely became the reason for an amendment in the constitution, under which the provision regarding reservation in admission was made clear.

Actually this is the matter of Champakam Dorairajan case 1951. At that time, the Madras government had made arrangements for reservation in the college on the basis of community. Champakam appealed against this and argued that reservation could not be done under Article 15(1), Article 29(2) and Article 16.

Which was also true, especially Article 29 (2) was completely against it. Because it says that no citizen can be prevented from entering any educational institution run by the State or run from the State fund, on grounds of religion, race, caste and language or any of them.

The Madras government argued that we are giving reservation on the basis of Article 46. Here the Madras Government was also right as Article 46 supports it. But since Article 46 is the Directive Principle of State Policy,

The Supreme Court upheld the Fundamental Rights as paramount over the DPSP. And to reject this, the Government of India made the first constitutional amendment.

Under this, in Part III of the Constitution, article 15(4) was added and it was provided that nothing in this article or in article 29(2); shall prevent from making special provisions for any backward classes of citizens or STs and SCs.

In this way, the path of reservation in admission in educational institutions was cleared for the backward class, SC class or ST category.

Again, Article 15(5) was added through the 93rd Constitutional Amendment 2005 and it was provided that – Nothing in this article and Article 19(1)(g) shall prevent from making special provisions for any socially and educationally backward citizens and ST or SC. (except in Article 30(1).

And then in 2019 through the 103rd Constitutional Amendment, Article 15(6) was added and reservation was made for the Economically Weaker Section (EWS).

For this, it was written in Article 15(6) that nothing in Article 15 and Article 29(2) and Article 19(1)(g) shall prevent EWS from admission in educational institutions. In this way, a provision of 10 percent reservation was made in admission for EWS.

[Remember here that EWS will include only those, which will be determined by the government from time to time on family income and other economic indicators.] So overall this is the constitutional basis for giving reservation regarding admission.

[ Note – Article 15(3) states that the state can make special provisions for women and children. This can be seen by linking women to reservation or preference. But as we have also discussed above that women do not get vertical reservation but horizontal reservation, we are going to understand how this happens further.]

Universities allot seats on the basis of reservation percentage from two different categories: (1) Reservation Category (SC, ST, OBC, EWC and other minorities) (2) Open Category (General, SC, ST, OBC, EWS and Others) Minority).

The reservation category, including 33 percent reservation for women in allocation, is given priority in this way; Other Minority Women, ST Women, SC Women, ST Men, SC Men, OBC Women, OBC Men, EWS Women, EWS Men and then comes the Open Category.

What is Vertical Reservation and Horizontal Reservation ?
vertical reservation means such reservation as is applicable separately to each group specified under the law. Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes is known as vertical reservation or vertical reservation . Horizontal reservation – It is meant to provide equal opportunities to other categories of beneficiaries such as women, elderly, transgender community and persons with disabilities, who cut across vertical categories. This means to say that no separate category has been created for women and disabled people, such as SC, ST and OBC have been created. That is why the reservation which is given to women and differently-abled, etc., is not available separately, but is deducted from the quota of SC, ST and OBC. Suppose there is a 30% reservation for women, then she will not get this reservation separately, but 30% of the seats to be filled under SC, ST and OBC quota should be women. For understanding, suppose ST, SC and OBC; Vacancies have been created for 100 seats for each category, so out of 100 seats for SC, 30 will be filled by women, out of 100 seats for ST 30 will be filled by women and 30 out of 100 seats in OBC will be filled by women. Overall, this is its concept, by the way, to understand in detail, definitely read this article – Vertical and Horizontal Reservation Concept Explained

What is Vertical Reservation and Horizontal Reservation ?

vertical reservation means such reservation as is applicable separately to each group specified under the law. Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes is known as vertical reservation or vertical reservation .
Horizontal reservation – It is meant to provide equal opportunities to other categories of beneficiaries such as women, elderly, transgender community and persons with disabilities, who cut across vertical categories.

This means to say that no separate category has been created for women and disabled people, such as SC, ST and OBC have been created. That is why the reservation which is given to women and differently-abled, etc., is not available separately, but is deducted from the quota of SC, ST and OBC. Suppose there is a 30% reservation for women, then she will not get this reservation separately, but 30% of the seats to be filled under SC, ST and OBC quota should be women.

For understanding, suppose ST, SC and OBC; Vacancies have been created for 100 seats for each category, so out of 100 seats for SC, 30 will be filled by women, out of 100 seats for ST 30 will be filled by women and 30 out of 100 seats in OBC will be filled by women.
Overall, this is its concept, by the way, to understand in detail, definitely read this article – Vertical and Horizontal Reservation Concept Explained

| Constitutional basis for reservation in post or appointment

Article 16 lays down the constitutional basis for reservation of appointments and posts. And the reservation given under it has been very controversial. Let’s understand how;

According to Article 16(4), the state can make arrangements for reservation in government employment or appointments for backward classes of citizens.

Today, the SC, ST, OBC who get reservation in employment or appointments are available under Article 16(4). Also, the benefits of reservation and consequential seniority in promotions to SCs and STs are available under Article 16(4A).

Similarly, there is also a provision to carry forward the vacancies remaining in a year to the next year, and this arrangement has been made under Article 16(4B).

What is Carry Forward Rule ?
In the Indira Sawhney case, the Supreme Court approved the carry forward rule, but also imposed a condition that it should not exceed 50%. Let us understand this with an example – suppose in a year there are total 50 seats vacancies and out of that 10 seats are to be filled by SC category persons. If for some reason let’s say 8 out of 10 seats remained vacant. So those 8 seats will be carried forward to the next year. For Details – Read this Section of next article

What is Carry Forward Rule ?

In the Indira Sawhney case, the Supreme Court approved the carry forward rule, but also imposed a condition that it should not exceed 50%.

Let us understand this with an example – suppose in a year there are total 50 seats vacancies and out of that 10 seats are to be filled by SC category persons. If for some reason let’s say 8 out of 10 seats remained vacant. So those 8 seats will be carried forward to the next year. For Details – Read this Section of next article

And recently, with the help of 103rd Constitutional Amendment Act 2019, Article 16(6) clause was added and under this 10 percent reservation was made for Economically Weaker Section (EWS) in posts and appointments.

Q. Why Do Economically Weaker Sections (EWS) Get Reservation?
In 1991, the government of PV Narasimha Rao took the initiative of giving 10% separate reservation to the poor or economically weaker sections of the general categories. But at that time the Supreme Court (in Indira Sawhney case) Rejected the demand for reservation on economic grounds. In fact, the basic logic behind this reservation is that even among the upper castes, the condition of everyone is not good, there are people who are in poverty, misery or suppressed by their own people. In 2019, through the 103rd Constitutional Amendment, the BJP government announced to give 10 percent reservation to the economically backward classes, which is still going on.

Q. Why Do Economically Weaker Sections (EWS) Get Reservation?

In 1991, the government of PV Narasimha Rao took the initiative of giving 10% separate reservation to the poor or economically weaker sections of the general categories. But at that time the Supreme Court (in Indira Sawhney case) Rejected the demand for reservation on economic grounds. In fact, the basic logic behind this reservation is that even among the upper castes, the condition of everyone is not good, there are people who are in poverty, misery or suppressed by their own people.
In 2019, through the 103rd Constitutional Amendment, the BJP government announced to give 10 percent reservation to the economically backward classes, which is still going on.

[Article 16 (what is and why is 4A and 4B and what is the principle of consequential seniority, we are going to understand all this with examples in the next section {for now you can understand it by simple notes}]

What is Consequential seniority ?
Suppose a general category man is at level 3 in a government job. A man from Scheduled Caste is appointed at the same level but junior to a man from General Category. Since there is a system of reservation in promotion, that’s why the Scheduled Caste man gets promotion before the general category and now he becomes senior to that general category man. The resultant seniority says that now even if that general category man gets promotion, he will remain junior to the scheduled caste man.

What is Consequential seniority ?

Suppose a general category man is at level 3 in a government job. A man from Scheduled Caste is appointed at the same level but junior to a man from General Category.
Since there is a system of reservation in promotion, that’s why the Scheduled Caste man gets promotion before the general category and now he becomes senior to that general category man.
The resultant seniority says that now even if that general category man gets promotion, he will remain junior to the scheduled caste man.

[🔹 Also remember here that in the case of Group C and Group D appointments, where people have to be appointed from a territory, then the population of that community can get the same reservation as the population of that state. . However, this percentage cannot exceed 27 percent. Along with this, it is also kept in mind that the reservation given to SC, ST and OBC should not cross 50%.

When direct recruitment is done under open competitive examinations, ST gets 7.5 percent, SC 15 percent, OBC 27 percent reservation in that case. On the other hand, if the recruitment is without any open competition, then in that case 16.66 percent SC, 7.5 percent ST and 25.84 percent OBC get reservation.]

As we have also talked about above, SC, ST and OBC get vertical reservation while women and differently abled people get horizontal reservation, you can understand it by above explanation or from this link – Vertical and Horizontal Reservation Concept Explained.

FAQs Related to Reservation [pdf]

So overall in this article we have understood four different types of reservation and the constitutional basis of that reservation, some parts have been deliberately not given much detail because in the next part we are going to discuss all those aspects in detail.

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