Reservation policies in India: A critical study

Karanjot Singh (A32656113119)

Ll.B. III Year, Sem II, Sec B

Before one gets into the when, what or how of the reservation policies of the largest democracy in the
world, one must understand the why of the concept.

Hindu society is divided into four varna, or classes, a convention which had its origins in the Rig Veda,
the first and most important set of hymns in Hindu scripture which dates back to 1500-1000 B.C.

At the top of the hierarchy are the Brahmins, or priests, followed by the Kshatriyas, or warriors. The
Vaisyas, the farmers and artisans, constitute the third class. At the bottom are the Shudras, the class
responsible for serving the three higher groups. Finally, the Untouchables fall completely outside of this
system. It is for this reason that the untouchables have also been termed avarna (“no class”).

Jati, or caste, is a second factor specifying rank in the Hindu social hierarchy. Jatis are roughly
determined by occupation. Often region-specific, they are more precise than the sweeping varna system
which is common across India and can be divided further into subcastes and sub-subcastes. This is also
the case among untouchables. Andre Beteille defines caste as “a small and named group of persons
characterized by endogamy, hereditary membership, and a specific style of life which sometimes
includes the pursuit by tradition of a particular occupation and is usually associated with a more or
less distinct ritual status in a hierarchical system.”

The roots of India’s untouchability problem recede beyond history as does the caste system that gave
rise to it. This is different from the American setting (black and white racial discord), where the
population is not divided into a “natural” hierarchy conforming to religious belief, with the lowest sector
regarded as polluted and “untouchable.” Nevertheless, there are some parallels with what happened in
the United States. Untouchability inspired many Indians to work for reform, including leaders of the
independence movement like Nehru and Gandhi. Efforts to help the Dalits began in the 19th century,
first under British colonial administration and, later, from 1947, under India’s independent government.
Untouchability, like slavery in America, was prohibited by constitutional provision. As in the United
States, laws, administrative regulations, and commissions have anchored official efforts. At the center is
a network of government-managed “reservations,” positions set aside by quota in legislative bodies, in
government service, and in schools at all levels. The hope is that the “Scheduled Castes,” as Dalits are
officially known, can use such opportunities as springboards for better lives for themselves and for
integrating themselves more fully into the life of the country. (The situation of India’s “Scheduled
Tribes” (ST) is generally similar to that of the Scheduled Castes (SC).
The reservation policy in India is nothing new, as it had existed in our society from the time of the British
rule and the princely states. The motive of having reservation then was the eagerness to modernize
through the promotion of education and industry and maintaining unity among themselves.
Reservation continued in India even after having achieved independence from the British. But there is an
interesting fact that needs to be seen, that is the inclusion of provisions of reservation in the
Constitution of India based on caste in educational institutions was after the intervention of the
Supreme Court in the case of State of Madras v. Champakam Dorairajan where the court struck down
the classification for reservation being based on caste, race and religion for the purpose of admission to
educational institutions as unconstitutional.

As early as 1858, the government of Bombay Presidency, which included today’s Maharashtra, declared
that “all schools maintained at the sole cost of Government shall be open to all classes of its subjects
without discrimination.” Although a 1915 press note revealed that this policy was not being enforced—
in one case, a Mahar boy was not allowed to enter the schoolroom, but was relegated to the veranda—
the Bombay government maintained its position on the issue, and, in 1923, announced a resolution
cutting off aid to educational institutions that refused admission to members of the Depressed Classes.
Other initiatives followed including the 1943 Bombay Harijan Temple Entry Act and the 1947 Bombay
Harijan (Removal of Civil Disabilities) Act. In the United Provinces, now Uttar Pradesh, the 1947 United
Provinces Removal of Social Disabilities Act was put in force. In what is now Kerala, the Maharaja of
Travancore announced the “Temple Entry Proclamation” in 1936, in what has been called a “pioneer
[effort] in the field of reforms relating to the eradication of untouchability before independence.”
Stating that “none of our Hindu subjects should, by reason of birth or caste or community, be denied the
consolations and solace of the Hindu faith,” the Maharaja declared the removal of all bars on those
denied entry to temples controlled by the Travancore government. Other measures affecting what
would become the present state of Kerala included the 1938 Madras Removal of Civil Disabilities Act and
the 1950 Travancore-Cochin Temple Entry (Removal of Disabilities) Act.
In March 1947, Britain sent Lord Louis Mountbatten, war hero and royal relative, to New Delhi as the
King-Emperor’s last Viceroy. His mission was to transfer power to an independent Indian government. In
the end, power was transferred to two successor entities, Pakistan on August 14, 1947, and India on
August 15, 1947. Under the Cabinet Mission plan the Constituent Assembly was to consist of 389 seats,
296 of which were filled by delegates elected from the directly-administered provinces of British India
and 93 of which were allotted to the princely states. The total number of seats was based on an
undivided India, and, overall, represented a cross-section of the population of the country. Given the
Muslim League’s boycott of the Assembly, the impact of partition and subsequent migration, and the
lengthy process of integrating the princely states, the number and distribution of seats continually
fluctuated from the time of the first meeting on December 9, 1946. With the 1947 partition, many
Muslim delegates left for Pakistan, terminating their membership in the Assembly. As a result, the body
was reorganized. By November 26, 1949, it consisted of 324 seats, divided among the provinces and the
princely states and representative of all major minority groups.

The make-up of the Constituent Assembly reflected the reality of what groups wield power in India, then
and now. An analysis of membership in the most important advisory committees of the Constituent
Assembly found that 6.5 percent were SCs. Brahmins made up 45.7 percent. Minority and Scheduled
Caste delegates did have some influence during the Assembly proceedings, with several holding
significant positions. Dr. H.C. Mookherjee, an Indian Christian, was Vice-President of the Constituent
Assembly as well as Chairman of the Sub-Committee on Minorities. However, by far the most important
was Dr. Ambedkar.

From the outset, the Constituent Assembly laid out clearly its objectives and philosophy for the new
constitution. Several of the framers’ main goals, articulated in the “Objectives Resolution,” included
guarantees of equality, basic freedoms of expression, as well as “adequate safeguards…for minorities,
backward and tribal areas, and depressed and other backward classes.” These principles guided the
delegates throughout the constitution making process.

The Assembly set up a special Advisory Committee to tackle minority rights issues. This committee was
further divided into several subcommittees. The Subcommittee on Minorities focused on representation
in legislatures (joint versus separate electorates and weightings), reservation of seats for minorities in
cabinets, reservation for minorities in the public services, and administrative machinery to ensure the
protection of minority rights. After extensive research and debate, the Subcommittee on Minorities
drafted a report of its findings for submission to the Advisory Committee. The latter supported most of
the Subcommittee’s recommendations.
Vallabhbhai Patel (1875-1950), Chairman of the Advisory Committee and the most powerful member of
the governing Congress party after Nehru, submitted the Report on Minority Rights to Rajendra Prasad,
President of the Assembly, and on August 27, 1947, the Assembly convened to discuss the Report. Patel
opened the debate by presenting the Advisory Committee’s main recommendations. Rejecting separate
electorates—Congress wanted no repeat of the separate electorates granted to the Muslims by the
British—and a “weightage” system, the Report endorsed the creation of joint electorates and
proportional representation. Reservations were approved for minorities, as long as the reservations
were in proportion to the population of the targeted groups. Some minorities, like the Parsis, voluntarily
gave up this right. Treatment of the Scheduled Castes was extensively debated. Efforts by Ambedkar and
his allies to craft a provision requiring a “tripwire” 35 percent of Scheduled Caste votes in a constituency
reserved for the Scheduled Castes failed. The principle of common voting and reserved seats in
legislative bodies throughout the country was retained despite strong opposition from influential
Constituent Assembly members like Nehru. However, the colonial-era system of having the Scheduled
Castes choose candidates for reserved seats through local “electoral colleges” was dropped. Throughout
the debate, caste Hindus permitted nothing that would suggest splitting off the Scheduled Castes in an
electoral sense from the Hindu community.

With an entire section dedicated to “Fundamental Rights,” the Indian Constitution prohibits any
discrimination based on religion, race, caste, sex, and place of birth (Article 15[1]). This law extends to all
public institutions, such as government-run educational facilities, to access to hotels and restaurants,
public employment and public wells, tanks (manmade ponds for water supply and bathing), and roads.
The practice of untouchability is declared illegal (Article 17).

Significantly, Article 15, which prohibits discrimination, also contains a clause allowing the union and
state governments to make “any special provision for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes.” This
language was added in 1951 within weeks of a Supreme Court decision outlawing quotas in school
admissions. The speed of the amendment is indicative of the strong political support for reservations,
Nehru’s personal views notwithstanding.
Similarly, Article 16, calling for “equality of opportunity in matters of public employment,” contains
clauses permitting 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” and another allowing “reservation in matters of promotion” for Scheduled Castes and
Scheduled Tribes. A separate section of the Constitution, “Special Provisions Relating to Certain Classes,”
requires the reservation of seats in the “House of the People,” or Lok Sabha, and the Legislative
Assemblies of the states for the Scheduled Castes and Scheduled Tribes. The numbers of reserved seats
are determined by the proportion Scheduled Caste and Scheduled Tribe members to the general
population, based on population estimates from the most recent decennial census. The President of
India and the Parliament, in consultation with the state governments, determine the list of groups
qualifying as Scheduled Castes,

Scheduled Tribes, and “backward classes.” Several safeguards accompany these provisions for
reservation. First, the Constitution originally required the reservation of seats in the Lokh Sabha and
state legislatures to end after ten years. After five amendments, the policy was set to expire on January
25, 2010. Secondly, regarding the reservation of jobs, Article 335 of the Constitution mandates that the
“claims of the members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration,
consistently with the maintenance of efficiency of administration.” Finally, a National Commission for
Scheduled Castes and Scheduled Tribes was created to investigate, monitor, advise, and evaluate the
progress of the Scheduled Castes and Scheduled Tribes under the schemes aimed at the socio-economic
development of these groups. Another Commission was also created to investigate the conditions of the
socially and educationally backward classes. It is interesting to note that the Constitution’s reservations
construct, which explicitly singles out certain castes for special preferential treatment, contradicts the
document’s prohibition on discrimination based on caste, race, and other such criteria. Furthermore,
India’s caste system itself, with its strict hierarchy dictated by birth, is at odds with the ideals of equality
and social justice.

Despite the creation of centrally based commissions to monitor reservations and other schemes, the
Constitution gives great liberties to the individual states to determine the quantity and limits of
reservation and what, for example, qualifies as the “maintenance of the efficiency of administration.”
The clause giving states the authority to formulate and implement policy to facilitate “the advancement
of any socially and educationally backward classes of citizens,” is also decidedly vague. No concrete
definition of “backward” is provided either. In addition, though a specific—if, in practice, flexible—time
limit is placed on the reservation of seats in the Lok Sabha and state legislative assemblies, there is no
such clause regarding the future termination of reservations of jobs and promotions.
To give teeth to the protections for the Scheduled Castes and Tribes mandated by the Constitution,
India’s Parliament has passed two major laws. The Untouchability (Offenses) Act of 1955 (renamed the
Protection of Civil Rights Act in 1976) was intended to provide enforcement of Article 17 of the
Constitution, outlawing untouchability. It fell short of expectations. In the words of India’s National
Commission for Scheduled Castes and Scheduled Tribes, “All the measures taken were not found to be
effective enough in curbing the incidents of atrocities on Scheduled Castes and Scheduled Tribes.”73 In
1989 a new law, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, came into
force. Similar to an American hate crimes statute, it provides heavier penalties than under ordinary law
for eighteen specified crimes including forcing the eating of obnoxious substances, bonded labor, and
sexual exploitation.

Thus the basic principles on which reservation was based is specified in Articles 14, 15(1), 16(1) and
16(2).

Article 14 guaranteed equality to all: “The State shall not deny to any person equality before the law or
the equal protection of the laws within the territory of India.” That was the fundamental guarantee.

Article 15(1) made that guarantee specific in one particular:” The State shall not discriminate against any
citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”

Article 15(2) guaranteed equal access for everyone to public facilities like wells, restaurants etc.

Article 15(3) contained a proviso provided: “Nothing in this article shall prevent the State from making
any special provision for women and children.” Notice again: the only categories for which special
provisions were envisaged were women and children. In particular, notice that no exceptions were
envisaged on the basis of castes.

Article 16(1) made the fundamental guarantee of equality. “There shall be equality of opportunity for all
citizens in matters relating to employment or appointment to any office under the State.”
Article 16(2) did for governmental employed what Article 15(1) did for a citizen’s living in general: “No
citizen  shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of
them, be ineligible for, or discriminated against in respect of, any employment or office under the
State.”

Article 16(4) contained a provison, “Nothing in this article shall prevent the State from making any
provision for the reservation of appointments or posts in favour of any backward 5 class of citizens
which, in the opinion of the State, is not adequately represented in the services under the State.”

Therefore to sum up what the Constitutional framers provided we may say:

(a)The fundamental guarantee in every provision was of equality, of non- discrimination.

(b)  Caste was most consciously eschewed: the proviso to Article 15(1) spoke only of   women and
children; Article 16(4) spoke only of “any backward class of citizens.”

(c)Where caste was mentioned, it was only to prohibit discrimination on grounds of caste.

(d)  Where ‘equality’ was made specific in Article 16(1) in regard to employment under the State, for
instance the expression that was used was ‘equality of opportunity’, an expression that, has been buried
deep under the rhetorical flourishes of progressives.

The legal history of reservations in India can be traced back to the cases of State of Madras v. Srimathi
Champakam Dorairajan and Venkatraman v. State of Madras. In these cases the Indian Supreme Court
held that any legislation and/or executive order prescribing reservations on the basis of caste were
unconstitutional. Soon after the said two decisions the Parliament intervened and in exercise of its
constituent power amended Article 15 by inserting Clause (4) which states that “Nothing in this article
or in Clause (2) of Article 29 shall prevent the State from making any special provision for the
advancement of any socially and educationally backward classes of citizens or for the Scheduled
Castes and the Scheduled Tribes.” It is also profitable to note that the said amendment was brought
about by the very same constituent assembly which drafted the Indian Constitution.  Then came up the
issue of the ceiling on reservation which was dealt by the Court in the M.R. Balaji v. State of
Mysore wherein it was held that under no circumstances can the reservation exceed 50%. Meanwhile,
the issue regarding the determination of socially and educationally backward classes was always of
grave concern. Article 15(4) does not define ‘backward classes’.

In Balaji, it was said that ‘caste’ may be a relevant factor, but not the sole criteria nor the dominant
criteria for determination of backward class.  In that case, the order of reservation was declared bad as
it was based solely on caste without regard to other relevant factors. In Janki Prasad Parimoo v. State of
J & K, it was held that poverty alone cannot be the test of backwardness as large sections of population
in India are backward and thus the whole object of reservation would be frustrated.
In Chitralekha v.State of Mysore, an order saying that a family whose income was less than Rs. 1200 per
year and followed such occupation as agriculture, petty business, inferior services, crafts, etc would be
treated as backward, was declared valid though caste as a criteria was totally ignored for the purpose. It
was held that identification of backward classes on the basis of occupation-cum-income, without
reference to caste is not bad and would not offend Art. 15(4).

In the course of time, judicial view underwent considerable change and more importance was given to
‘caste’ as a factor to assess backwardness. In P. Ranjendran v. State of Madras it was held that though
‘caste’ cannot be the sole criteria, it should not be forgotten that caste is also a class of citizens and if
the caste as a whole is socially and educationally backward, reservation can be made in favour of such
caste. In S.V. Balaram v. State of Andhra Pradesh, a list of backward class based solely on caste with
material proving that those castes were socially and educationally backward, was held to be valid. But
in State of Andhra Pradesh v. P.Sagar, a list of backward class based solely on caste without any
material showing that the entire caste is backward, was quashed as violative of Article 15(4). In K.S.
Jayasree v. State of Kerela, a person belonging to the backward class but family income exceeding Rs.
10000, was denied the benefit of reservation as it was held that caste could not be treated as the sole or
dominant test for the purpose and poverty too had too be taken into account. It was held that neither
poverty nor caste can be sole factors for determining backwardness. Caste and poverty are both
relevant factors for determination of backwardness.

In Jagdish Negi v. State of Uttar Pradesh, it was made clear that no class of citizens can be perpetually
treated as socially and educationally backward and the State is entitled to review the situation from time
to time. In Indra Sawhney v. Union of India, the Court observed that the policy of reservation has to be
operated year wise and there cannot be any such policy in perpetuity. Further it also held that Art. 15(4)
does not mean percentage of reservation should be in proportion to the percentage of population of the
backward classes to the total population and that it was the State’s discretion to keep reservation at
reasonable level by taking into consideration at all legitimate claims and relevant factors. In Ashok
Kumar Thakur v. Union of India, Justice Balakrishnan, CJ, did not lay down any new principle for
determination of backward classes, but followed the principle as was laid down in earlier judgments.
The question dealt was whether the list formulated by the National Commission for the Backward
Classes and the State Commission of Backward Classes has considered all relevant factors and criteria
apart from caste for determination of backwardness.
Various commissions had held public hearings at various places for determination of backward classes.
National Commission held 236 public hearing before it finalized the list. National Commission
recommended 297 requests for inclusion and at the same time rejected 288 requests for the inclusion in
the final list. The Commission had taken into consideration detailed data with regard to social,
educational and economic criteria. It had also looked into whether there had been any improvement or
deterioration in the condition of the caste or community (mentioned in the final list) during the past 20
years. Thus Justice Balakrishnan, in his judgment held that identification of OBC’s was not done solely
based on caste. Other Parameters were followed in identifying the backward class. Thus Act 5 of 2007 is
not invalid for such purpose. Justice Dalweer Bhandari, in his dissenting opinion raised various important
points. He stated that the ultimate goal of the Constitution is to have a casteless society and
determining backwardness on the basis of caste would instead give a fresh lease of life to caste system
in India. He propounded that economy should be the sole criteria for determining backwardness and
that any proposed affirmative action must be time bound.

The authors most respectfully wish to differ from the opinion of Hon’ble Justice Dalveer Bhandari. We
agree with the majority opinion of Justice KG Balakrishnan that caste ought to be considered as a major
criterion for determination of backwardness. Caste system has been prevalent in India since time
immemorial. Every individual belongs to some caste or the other. The backwardness of people in India
can be traced to the caste they belonged to. Every caste is associated with a particular occupation. That
relation could not be severed. An example cited was in the case by learned Counsel Ravivarma Kumar,
appearing for the Union of India, that throughout the country in 6.5 lakh villages, it is the barber
communities and the barber communities alone, which carry on the traditional occupation of hair
cuttings and no other community has taken up the said occupation. Though it may be said that people
have deviated from that occupation and became doctors, engineers, lawyers, etc, but these people form
a very small number. This caste-occupation nexus exists till date in the India. Thus the whole caste on
the basis of the occupation they follow could be called backward.

Thus caste as a criterion cannot totally be ignored. As far as people belonging to these castes, but
economically and educationally well off, are concerned, they would fall within the creamy layer
(discussed in the next sub section) and would thus be denied the benefit of reservation. Thus no person
would be wrongfully granted the benefits of reservation. As far as the goal of forming a casteless society
is concerned, it is not reasonable to expect to achieve such goal in the immediate future. Till such time,
affirmative action needs to be adopted for the advancement of castes which are backward. When it is
felt that these castes have become sufficiently advanced, then caste as a criteria for backwardness can
be disposed off. However, we concur with Justice Bhandari on the view that time limit needs to be
propounded for caste-based reservation.
The basis for exclusion of the creamy layer is by far one of the the most important issue before the
Supreme Court in -Ashok Kumar Thakur v. Union of India. The Hindi version of the Reservation Act which
had excluded creamy layer from the ambit of reservation was rejected by the Parliament and the English
version of the Reservation Act which did not exclude creamy layer from the benefit of reservation, was
accepted. Thus the intention of the Parliament was clear that they wanted to include creamy layer for
the purpose of reservation. The term ‘creamy layer’ in simple words means the elite from the lowest
caste. Popular perception is that this term was first coined in Indra Sawhney v. Union of India.

Contrary to popular belief, the said term was first coined by Justice Krishna Iyer, in State of Kerela v.
N.M. Thomas, wherein he observed that ‘benefits of the reservation shall be snatched away by the
top creamy layer of the backward class, thus leaving the weakest among the weak and leaving the
fortunate layers to consume the whole cake’. This term was cited again by Justice Krishna Iyer in Akhil
Bhartiya Soshit Karamchari Sangh v. Union of India and by Justice Chinnapa Reddy in K.C. Vasanth
Kumar v. State of Karnataka raising similar concerns. The roots of this concept can however be traced
back to the case of K.S. Jayashree v. State of Kerela wherein the people belonging to backward class,
but whose family income exceeds Rs. 10000, were denied the benefit of reservation.

However, in Indra Sawhney v. Union of India the Supreme Court dealt with “creamy layer” at length.
That case dealt with reservation of backward classes in case of public employment. Justice Jeevan Reddy
stated that ‘creamy layer’ can be, and must be excluded from the purview of reservation. He
emphasized that upon a member of a backward class, reaching an advanced social level or status, would
no longer belong to the backward class and would have to be weeded out. After excluding the creamy
layer alone, would the class be a compact class and such exclusion would benefit the truly backward.
The Supreme Court had observed that ‘the backward class under Art. 16(4) means the class which has
no element of creamy layer in it. It is mandatory under Art. 16(4) that the state must identify the creamy
layer in a backward class and thereafter excluding the creamy layer extend the benefit of reservation to
the ‘class’ which remains after such exclusion.’

In Ashok Kumar Thakur v. State of Bihar, unreasonable conditions were prescribed to identify the
creamy layer. Unlike in Indra Sawhney case wherein it was stated that children of any IAS or IPS officer
would be denied the benefit of reservation, in Ashok Kumar Thakur v. State of Bihar an additional
condition was laid down that the IAS or IPS officer should also be earning a minimum salary of Rs. 10000
per month, which condition was quashed as discriminatory. In Indra Sawhney v. Union of India (II), also
known as the Kerala creamy layer case, the Kerela Legislature passed an Act declaring that there would
be no creamy layer in the State of Kerela. The Supreme Court in this case further explained the rationale
underlying the rule of exclusion of creamy layer. As the creamy layer is not entitled to the benefits of
reservation, non-exclusion thereof would be discriminatory and violative of Articles 14 and 16. Thus the
Act was declared unconstitutional.
The above cases were with respect to the exclusion of creamy layer from reservation in public
employment. The issue of exclusion of creamy layer from reservation in educational institutions was
dealt with in Ashok Kumar Thakur v. Union of India. The main contention raised by counsels appearing
for the Respondents regarding inclusion of creamy layer for the purposes of reservation centered on the
idea that the objective of reservation under Article 15 and Article 16 is different. The contention was
that reservation under Article 15 is not a poverty alleviation programme nor is it a programme to
eradicate unemployment and nor is it a programme to educate all the backward classes. It is to bring
about equality among different castes. Therefore it was contended that if the lower castes are deprived
of the facilities and opportunities in the name of the creamy layer, then it will be counter productive and
would frustrate the very object of reservation, namely to achieve equality in status, facilities and
opportunities.

Chief Justice K.G. Balakrishnan, addressing the aforesaid contention said that the people belonging to
the backward caste, but being economically advanced do not require the protection of reservation. He
stated that the creamy layer principle is introduced merely to exclude a section of a particular caste on
the ground that they are economically advanced and educationally forward and unless they are
excluded, there cannot be proper identification of backward class. If creamy layer is not excluded,
then that would mean that identification of OBCs would be solely on basis of caste and thus violative
of Article 15(1) and 16(1). Moreover reservation of OBCs under Article 15 is designed to provide
opportunities in education thereby raising educational, social and economic levels of those who are
lagging behind.

By excluding those who have already attained economic well being or educational advancement, the
special benefits provided under these clauses cannot be further extended to them and if done so, it
would be unreasonable, discriminatory or arbitrary, resulting in reverse discrimination. Thus, if the
creamy layer is not excluded, the identification of OBC will not be complete such non-exclusion of
'creamy layer' may not be in accordance with Article 15(1) of the Constitution. The word ‘social’ under
Article 15(4) and 15(5) is much wider and also includes ‘economically.  Former Prime Minister of Indian
Mr. Jawaharlal Nehru said that ‘economic’ was included in the ‘social’ portion of ‘social and
educationally backward’. Only ‘social and educationally backward’ was added under Article 15 so as to
maintain symmetry with Article 340 also. Had it not been for a desire to achieve symmetry in drafting,
‘economically’ would have been included. Had this been done, the creamy layer would have been
excluded ab initio. Thus the objective of the founding fathers is very clear that they intended to exclude
creamy layer from the benefits of reservation.
The persons included in the creamy layer are already advanced and can be compared to the so called
forward section of the society. They can be treated as equals with the forward section of the society.
Thus the contention that exclusion of creamy layer would not bring about equality as those people
would remain backward, is not well founded. Instead inclusion of creamy layer would mean unequal
persons being treated as equal thus being violative of Article 14, 15 and 16. Another important issue
with regard to the creamy layer controversy is whether the restrictions imposed on the creamy layer
would apply in case of Schedule Caste and Schedule Tribes also. The Supreme Court held that ‘creamy
layer’ is a parameter to identify backward class. Therefore this principle cannot apply to SCs and STs
as they are separate classes by themselves.

The author most respectfully differs from the said view of the hon’ble Court. The Court seems to have
assumed that there is no creamy layer from amongst the persons belonging to SCs and STs. The whole
purpose of reservation is to see to it that backward classes advance forward. For over 58 years,
reservations have been given to SCs and STs and it would be expected that certain sections of SCs and
STs would have advanced or will advance forward (socially and economically). The same logic and the
same rationale as it applies to OBCs, should also apply to SCs and STs with respect to exclusion of
creamy layer. It was observed in M. Nagraj v. Union of India, that creamy layer from SCs and STs also
needs to be excluded. The Supreme Court seems to have overlooked the said observation.

Conclusion
As discussed the government has kept various welfare schemes for the SC and ST in India. If we take
few examples than reservations in educational systems, land allotments for residents (free of cost),
agricultural land allotted free of cost for farming etc.

I believe that there should be reservation in the educational system of India. Due to which they can also
get good and higher education, but at the time of the jobs/ public service there should be no
reservation. A person has got almost 22 to 25 years benefit of reservation policy and had completed his
studies. Now he should stand on his own feet and should face the competition in the market. They have
got all the things which a person born in other cast has got by now, provided a sane a socially acceptable
environment has been supplemented by the general (non SC, ST and OBC) society.

Judiciary has played great role in the reservation policy. In various cases, Supreme Court has given
passing reference to the reservation on the SC & ST in jobs. But Supreme court has said that reservation
should not increase then 50% in any condition but in most North Eastern state this reservation is
increased to 85% and still they have started a move to increase it to the 95% and court is not taking any
steps against it. By this way we can see that judiciary is also playing a role in increase of reservation for
SC & ST.

Now days politicians are playing a major role in reservation policy. The reservation policy was only for 10
years after the independence, for the upliftment of SC and ST but till now it is continue and no one has
taken any step to amend it or revise it or to change it. The reason behind this is the population of SC and
ST in country. Nearly 33% voting is done by SC and ST so now if they make any change in the reservation
policy against the SC and ST then they have to suffer a lot for the same. So they are not taking any steps
against the reservation policy.

Now if you consider the theory of John Rawles of justice then he has clearly said that “starting line
should be / must be the same for all the Persons.” By providing reservation in the educational systems
we are giving the same line to all the persons. He further also said that by providing equality in
education they are providing equal chance to start to all the persons and further there is no need of
reservation in service also.

John Rawles’ theory would well settle theoretically but as stated earlier, in a practical paraphernalia the
setting and mind set of the unreserved part of population must go hand in hand with the affirmative
discrimination policies in making the reserved part of the population come at an actual and affirmative
par.