The issue of reservation in public employment

Jurisprudence of reservation relies on symbiotic coexistence of constitutionally guaranteed equality of opportunity in public employment under Article 16 (1) of the Constitution of India and classifications under various clauses especially Article 16(4) and Article 16 (4 A).

Reservation not a fundamental Right

• SC: there is no fundamental right to reservation or promotion under Article 16(4) or Article 16(4 A) of the Constitution
  • They are enabling provisions for providing reservation if the circumstances so warrant (Mukesh Kumar and Another vs State of Uttarakhand & Ors. 2020).
• These pronouncements no way understate the constitutional directive under Article 46 that mandates that state shall promote with special care the educational and economic interests of the weaker sections of the people and in particular SCs and STs
• Sensitivity of welfare state towards weaker sections over decades resulted in gradual expansion of reservation.
• It led to increasing classifications under Article 16, which created a wave of litigation resulting in jurisprudence of affirmative action in public employment.

The Mandal storm and Indra Sawhney

• Reservation in employment confined to SCs and STs got extended to OBC as well on the basis of recommendations of Second Backward Class Commission headed by B.P. Mandal.
• Recommendation: provide 27% reservation to OBCs in central services and public sector undertakings, above the existing 22.5% reservation for SCs and STs.
• It was to be implemented in 1990 and was assailed in SC resulting in Indra Sawhney Judgment (1992).
  • It upheld constitutionality of 27% reservation but put a ceiling of 50% unless exceptional circumstances warranting the breach, so that constitutionally guaranteed right to equality under Article 14 would remain secure.
• Court declared that Article 16(4) is not an exception to article 16(1), rather an illustration of classification implicit in article 16(1).
• It directed exclusion of creamy layer by horizontal division of every OBC into creamy layer and non-creamy layer.

The Constitution (Seventy-seventh Amendment) Act, 1995

• Indra Sawhney Case: SC held that Article 16(4) does not authorise reservation in promotions.
• However, judgment will not affect promotions already made and hence only prospective in operation/
• Constitution (Seventy-seventh Amendment) Act, 1995: Article 16(4-A), was inserted
• Extended reservations for promotion in employment for SCs and STs.
  • Later, two more amendments were brought
  • To ensure consequential seniority
  • To secure carry forward of unfilled vacancies of a year
• The Constitution Bench Judgment in M. Nagaraj (2006)
  • It held that creamy layer among Scheduled castes and tribes is to be excluded from reservation.

Jarnail Singh vs Lachhmi Narain Gupta (2018)

• Objective: To examine wisdom of 2006 judgment in the light of the constitutionally recognised socio-economic backwardness of SCs and STs.
• It invalidated requirement to collect quantifiable data in relation to SCs and STs
• Upheld the principle of applicability of creamy lawyer in relation to Scheduled Castes and Scheduled Tribes.
• It indicates a critical turn in jurisprudence of reservation.

Dr. Jaishri Laxmanrao Patil vs Chief Minister (2021)

• Despite Indra Sawhney ruling, there have been attempts by many States expand the reservation coverage.
• Maharashtra Socially and Educationally Backward Classes Act 2018, (Maratha reservation law) came under challenge before SC.
• SC affirmed Indra Sawhney decision and struck down Section 4(1)(a) and Section 4(1)(b) of the Act which provided 12% reservation for Marathas in educational institutions and 13% reservation in public employment respectively, citing the breach of ceiling.
• This judgment is likely to stop some State governments to disregard the ceiling on electoral grounds.
• It is pertinent to note that several States such as Maharashtra, Karnataka, and Andhra Pradesh had made submissions before SC against any upper limit on reservation.

Exam Track

PrelimsTake Away

• Fundamental Rights
• Article 16
• Mandal Commission
• Indra Sawhney Case
• The Constitution (Seventy-seventh Amendment) Act, 1995