Reservations and Affirmative Action: Analysing Constitutional Provisions 

Reservations and affirmative action in India have been the two most important areas of  discussion within the ambit of social justice in the country, as they focus on overcoming  historical injustices and promoting inclusivity in education, employment, and politics. The  Indian Constitution contains provisions to uplift communities that have suffered disempowerment, such as Scheduled Castes (SCs), Scheduled Tribes (STs), Other Backward  Classes (OBCs), and Economically Weaker Sections (EWS). However, the interpretation and  implementation of such provisions have been subjected to judicial scrutiny, political  contestations, and changing socio-economic contexts. This paper analyses the constitutional  provisions regarding reservations and affirmative action in India, their judicial interpretations,  and the challenges they face in the contemporary context. 

Constitutional Basis for Reservations and Affirmative Action  

Article 15: Prohibition of Discrimination and Special Provisions  

Article 15 prohibits discrimination based on religion, race, caste, gender, or place of birth.  However, specific clauses allow affirmative action. Article 15 (3) allows the State to make  unique dispositions for women and children. The first constitutional amendment (1951)  introduced Article 15 (4) to allow reservations for classes, SCs, and social and educational  STS. The 93rd Amendment (2005) introduced Article 15 (5), allowing reserves in private  educational institutions, excluding minority institutions. In addition, Article 15 (6), added by  the 103rd Amendment (2019), provides a 10% reserve for EWS in educational institutions.¹ 

Article 16: Equality of Opportunity in Public Employment 

It refers to equality of opportunity in public employment and affirmative action. Article 16 (4)  provides for reserving government jobs for specific social and educationally backward classes.  Amendments No. 77 and 81 added Articles 16²(4A) and 16 (4b), providing the reservation of  SCS and STS promotions and the provision of delayed vacancies to be filled in subsequent  years. 

Other Relevant Provisions 

Thus, Articles 330³and 332⁴provide for reserving seats in the Lok Sabha and the State  Assemblies for SCs and STs. Article 335⁵balances reservation against administrative  exigency, while Article 46, a directive principle of the state policy, tells the State to promote  the educational and economic interests of the weaker sections. 

Judicial Interpretations and Landmark Cases on Reservations in India 

Constitutional Bench has balanced equality and social justice in action structures and  affirmative action through various decisions. The judicial pronouncements in numerous  reference cases have defined reservations' constitutional position under articles 15 and 16,  keeping them within constitutional limits and regarding their intended purpose. 

1. State of Madras v. Champakam Dorairajan (1951) 

In this case, a challenge was thrown to caste-based reservations in education. Under its  communal government order, the Madras government reserved specific seats for various  communities in educational institutions. The said case was put up by Champakam Dorairajan,  a Bramane woman, against the system, contending that she had better academic credentials  than few candidates in the reserved category but was denied entry into a caste-based medical  school on the grounds of education. The Supreme Court reversed the reservation policy because it was inconsistent with Article 15 (1), prohibiting caste-based discrimination on the grounds  of religion, race, gender, or place of birth. It delivered fundamental rights on social justice  measures vis-a-vis a rejection of reserves based on castes not constitutionally provided for. As  a result, the first amendment of the Constitution (1951) introduced Article 15 (4), which empowers the State to make special provisions for the advancement of backward social and  educational classes (SEBCs), scheduled castes (SCS), and scheduled tribes (STS). This case  settled the principle that reservations need a constitutional mandate and cannot be arbitrarily  imposed by the government.⁶ 

2. Indra Sawhney v. Union of India (1992)  

This case is one of the most critical decisions on OBC reservations and lays down the  framework for the extension and implementation of reservations. The case stemmed from a  government decision to implement the Mandal Commission report, which recommended 27%  reservations for other backward classes in central government jobs. The Supreme Court upheld  the reservation of 27% of OBCs and imposed some significant restrictions. It held that total  reservations cannot cross 50%, maintaining a balance between affirmative action and access  based on merit. The court also introduced the concept of the creamy layer in that it held that  economically advanced OBCs would be excluded from reservations so that the genuinely  disadvantaged could receive the benefits. It held promotions under reserve are unconstitutional  as Article 16 (4) provided for reservations only at the initial stages. It further emphasized that  resumes should not be permanent and should be reviewed periodically. This decision upheld  the argument that while affirmative action is warranted, it must not outweigh meritocracy or  administrative efficiency.⁷ 

3. M. Nagaraj v. Union of India (2006) 

Casual Acceptance by Indra Sawhney judgments then came constitutional amendments  through Parliament, permitting reserves on SCS and STS promotions. Such reservations were  challenged through the case of M. Nagaraj v. Union Of India (2006). The Supreme Court  upheld the amendments; however, the application was conditioned stringently. The Court also  settled the question that reservation in promotion is permissible with proof by the government  that the class is socially and educationally backward, inadequately represented in public  employment, and that the reservation does not adversely affect administrative efficiency. The  court reaffirmed the legislative power of Parliament to amend the Constitution by saying that  it cannot destroy the basic structure, which would mean equality and efficiency in management.  Unlike initial commitments, promotions with a reservation should not require justification  every time they are put in place. The case clarified that reservation policies must be  performance-based and not blanket privileges.⁸ 

4. Jaishri Laxmanrao Patil v. Chief Minister (2021)  

A law granting Maratha the status of Other Backward Classes or OBCs for the sake of  reservations was approved by the Maharashtra government. The law was challenged, claiming  it violated the 50% ceiling on reserves in the Indira Sawhney judgment. The Supreme Court  set aside Maratha's reservation, stating that the ceiling of 50% of reservations remains binding.  Any relaxation must be based on extraordinary circumstances, which Maharashtra has not  shown. The court saw the concept of states being able to unilaterally classify communities as  OBCs being rendered ineffective. With the 102nd constitutional amendment, the power to  identify backward classes lies with the NCBC (National Commission for Backward Classes).  Hence, further, it was stated in the judgment that meritocracy has to be reaffirmed: affirmatory  actions are required, but excessive state intervention in merit-based selection should not be  allowed. This decision dilutes a politically motivated extension of reservations and underwrites  judicial supervision over state policies.⁹ 

EWS Reservations (2019) – The 103rd Constitutional Amendment 

The introduction of the 10% reservation for Economically Weaker Sections (EWS) of the  general category under the 103rd Amendment to the Constitution marked an essential divergence from the affirmative action model based on castes. Reservations should not be  justified on economic criteria alone, which was the basis on which the amendment was  challenged. In a split verdict, the Supreme Court upheld EWS reservations, stating that the  Parliament can create new kinds of affirmative action. The Court also said that economic  criteria were sufficient to enable affirmative action despite previous judgments stating that  social and educational backwardness should primarily govern it. It further noted that EWS  reservations can surpass the 50% cap since they will not infringe upon existing reservations for  SCs, STs, and OBCs. The judgment thus introduced a new avenue of consideration for  affirmative action wherein economic disadvantage could be judged independent of caste. This  ruling undoubtedly broadened the umbrella of reservations but further raised the issue of  whether economic criteria contravene the spirit behind the Constitution regarding affirmative  action.¹⁰ 

Debates on Reservation Policies in India  

The maximum reservation of fifty percent, set in Indra Sawhney v. Union of India (1992),  became one of the most important defenses by the judiciary against excess reservations. The  Supreme Court ruled that total reservations should not exceed fifty percent to balance affirmative action and access based on merit. However, states like Tamil Nadu crossed this limit, resulting in endless legal debates on whether CAP is a rigid or flexible constitutional principle pivoted around the socio-political conditions. Although the government keeps on maintaining the ceiling, some voices justify the re-evaluation of this ceiling in terms of regional  delay and historical disadvantages.  

The creamy layer principle exists because OBC should benefit from excluding those  economically well-off in backward classes. This principle is meant to exclude the most elite  among OBCs and was discussed in Jarnail Singh v. Lachhmi Narain Gupta (2018) about its  applicability to SCS and STS. It would be crucial that the apex court found that the creamy principle of the layer could go so much as to SCs and STS in promotions. There would be this  raging debate on whether reservation should be caste-based alone or include an economic filter.  This further advances the discussion on the changes that affirmative action may undergo while  the judiciary tries to balance social justice against merit. 

Expanding reserves to new categories further complicates the jurisprudence of affirmative  action. The 103rd Constitutional Amendment, which introduced 10% reserves for  economically weaker sections (EWS) between unreserved categories, marked a significant  change in caste-based reserves. This amendment was challenged for diluting the central  objective of affirmative action, which traditionally focused on social and educational  backwardness rather than economic disadvantage alone. The advocate of EWS reservations for  the Supreme Court has created a parallel system, raising concerns about whether affirmative  action is moving away from its original intention to address historical oppression.  

The distinction between horizontal and vertical reserves has also been the subject of judicial  scrutiny. Vertical reservations apply to SCS, STS, OBCs, and EWS, while horizontal reserves  meet across categories such as women, people with disabilities, and trans people. The courts  have discussed whether horizontal reserves should be implemented in each vertical category or  all categories. Ensuring that horizontal reserves do not disturb the vertical quotas has been a  character challenge, requiring careful judicial interpretation to guarantee justice in affirmative  action policies. 

Political pressures on reserve policy have been a heated matter, as a sizable group of dominant  castes agitate to be included in OBC without any valid socioeconomic ground. Supreme courts  in cases like Maratha (Jaishri Laxmanrao Patil v. Minister -Chief, 2021) significantly prevent such politically motivated classifications. The judiciary sought the constitutional integrity of  affirmative action against any misuse of such provision for electoral gains while striking down  excessive or arbitrary reserves. 

Article 15 (3) of gender-based affirmative action allows the state to make special provisions  for women, acknowledging its historical disadvantage in social and economic spheres. But the  courts also validate some paternalistic policies that breed gender stereotypes instead of  empowering women. Although there have been very progressive rulings deeming reserves for  women in education and employment, judicial interpretations keep developing, thus defining  the extent of gender-specific affirmative action in India. The challenge continues to ensure such  affirmative action policies for women will benefit absolute equality rather than simply even  out those antiquated gender roles. 

Conclusion 

Reserves and affirmative action were critical in ensuring social justice in India. Such  implementation, however, demands balancing historical injustices and constraints the judicial  system poses against changing socio-economic realities. While relevant today, caste-based  reserves have now had a relatively higher increase in EWS quotas in favor of a shift toward economic criteria. In advancing, India has to be dynamic so that affirmative action policies  remain inclusive, directed, and flexible to present needs.

¹INDIA CONST. art, 15 

²INDIA CONST. art, 16

³INDIA CONST. art, 330 

⁴INDIA CONST. art, 332 

⁵INDIA CONST. art, 335 

⁶State of Madras v. Champakam Dorairajan, 1951 SCC 351

⁷Indra Sawhney v. Union of India, (1995) 5 SCC 429 

⁸ M. Nagaraj v. Union of India, (2021) 2 SCC 798

⁹Jaishri Laxmanrao Patil v. Chief Minister, 2020 SCC OnLine SC 746 

¹⁰ EWS Reservation Judgment: SC Upholds 103rd Amendment in 3-2 Majority, Supreme Court Observer (Nov. 7,  2022), https://www.scobserver.in/reports/ews-reservation-judgment-sc-upholds-103rd-amendment-in-3-2- split-verdict/.