By: Pawan Kumar, Research Scholar, Kurukshetra University                        M.Com., LL.M

Historical Background

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.

Reservation, in India, is a type of affirmative action that tries to allocate fixed number of seats in educational and social institutions for various under-represented communities. It is stated as a response to the thousands of years of discrimination done by upper caste persons in India. Thus, when India attained independence, the constitution gave special provision for certain communities to have a minimum representation in various fields. The initial provision was to have ended in a few years, but the practice continues till now, and the government of India kept on increasing the quotas in the matter of employment and education.

Constitutional Provisions

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.

Under Article 340 of the Indian Constitution, it is obligatory for the government to promote the welfare of the Other Backward Classes (OBC).

Article 340(2) states, "A commission so appointed shall investigate the matters referred to them and present to the president a report setting out the facts as found by them and making such recommendations as they think proper

Consequent to the notification of the Constitution (Ninety-Third Amendment) Act, 2005, effecting the 104th Amendment to the Constitution in January this year, the Government of India indicated its intention to provide reservation for students coming from the socially and educationally backward classes of citizens, popularly known as Other Backward Classes (OBCs) in higher educational institutions.

Therefore, Article 15 of the Constitution, after clause (4), the following clause is inserted; (5) Nothing in this article or in
sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational referred to in clause (1) of article 30 of the Constitution.

The 93rd Amendment Act, 2005 inserting Article 15(5) is without doubt introduced to overcome the law laid down by the Hon'ble Supreme Court in an unanimous judgment by 7 judges in P.A. Inamdar & Ors. v. State of Maharashtra & Ors [5] declaring that the State can't impose its reservation policy on minority and non-minority unaided private colleges, including professional colleges. This judgment was an attempt to bring clarity to two previous judgments by the Hon'ble Supreme Court in T.M.A. Pai Foundation & Ors. v. State of Karnataka & Ors [6] and Islamic Academy of Edn. & Anr. v. State of Karnataka & Ors [7] by a constitution bench that interpreted the Pai Foundation judgment. In the landmark Judgement in  the case of Ashok Kumar Thakur Vs. Union of India, 2008 the supreme court states that the  the constitution 93rd Amendment Act,2005 is valid and does not violate the “basic Structure” of the constitution so far as it relates to the state maintained institutions and aided educational institution. The creamy layer be excluded from the benefit of this provision.

Conclusion and Suggestions

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 a simple reservation of about 15% for the SC’s & ST’s in educational institutions now the percentage has gone up and also the other backward classes (OBC’s) have been brought within the fold of reservation by the suggestion of the Mandal Commission. 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. The existing system has not been able to fulfill 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. The policy of reservation has never been subject to a widespread social or political audit. Before extending reservation to more groups, the entire policy needs to be properly examined, and its benefits over a span of nearly 60 years have to be gauged.

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