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Concept of reservation in India! know the Law!

File Photo- Supreme Court of India

Reservation is a system of India that provides scholarship, concession in fees, seats in educational institutions, jobs and relaxation in qualifying exams, relaxation in age. The main motive of reservation was representation in education, employment, politics. In 2006, the court delivered its judgment in M Nagaraj Vs Union of India, in this the court validated parliament’s decision to extend reservation for Scheduled caste/ Scheduled tribe to include as a reservation in promotion. However, the court also laid down some conditions or challenges which made it difficult for the central government or state government to grant reservations. Reservation policy in India is a process of reserving a certain percentage of seats( maximum 50%) for a certain class such as scheduled class, scheduled tribe, backward classes etc in government educational institutions or government jobs, government exams etc. 

The reservation policy is an old age policy where the reservation criteria comes up from the period of untouchability caste system or varna system which was dominated by the society. In ancient times, Hindu society was divided on the basis of descending orders in a social hierarchy. They have been excluded from the social system and had to live outside the village or city and had no social rights. After independence the reservation policy gained more support. The constituent assembly chaired by Dr B.R Ambedkar framed a reservation policy and included many articles in the India Constitution such as: 

  1. Article 15(4) was added by the Constitution (1st amendments) in the case of State of Madras vs Champakam Dorairajan, 
  2. Article 15 (5) and Article 19(1), the clause 5 of article 15 and clause of article 19 was added by the constitution 93rd amendment, 
  3. Article 16 (3), Article 16 (4) through 77th amendments, 
  4. Article 17, Article 330-342, Relevance article 335. 
  5. In 1935, Parliament passed the government of India Act, 1935 so in this act the reservation of the seats for the backward classes was incorporated in this act.

Indra Sawhney vs Union of India is the landmark judgment of reservation where the 9 bench constitution by 6:3 majority held that the decision of the union government to reserve 27% government jobs for backward classes provided socially advanced persons a creamy layer. The reservation of seats shall only be confined to initial appointments not to promotions and the total reservation shall not exceed 50%. Article 16 (4-A) states that nothing in article shall prevent the state from making provision for reservation in mattress of promotion to any class or classes of post in the service of state in favour of SC/ST which is not adequately represented in the service under the state. Not to promote reservation criteria state about the no promotion on the basis of reservation, in simple words reservation is not used for promotion. Promotion in business entities is on the basis for capability, knowledge or experience. 

Reservation rules in India for civil posts or services are such as: 15% for the members of the schedule cast.
7.5 % for the scheduled tribe.
27% for the members of the other backwards classes. 

The great Indian reservation system has come up with many hurdles for the general category people who have more criteria to pass or to get their required positions in educational institutions, jobs, government exams. The reservation is to come up to maintain the people equally in the society. So to secure reservation you must have a caste certificate so caste certificate basically means any child who is born in India by default that child gets the case of his/her mother or father both. The child can hold mothers caste or as everyone says surname by the mother when the mother is widowed or divorced then the child can take the mother caste. You cannot change caste because it’s default in nature your caste is determined by 

birth , by default your fathers caste is your caste or if your parents get married under special circumstances then you have the option to choose between any of the cast either. 

Parliament made constitutional amendments to the judgment of Indira Sawhney case which had ruled that reservation in appointments, granted to the State by Article 16(4), do not apply to promotions, Article 16(4A), Article 16(4B), Article 335. Further the constitutional bench had given a task to look into whether Nagraj case has violated the Indira Sawhney judgment. So on 26th September 2018, the court delivered its verdict on Nagraj case striking down the backwardness provision of Nagraj while analysing they introduced the provision of creamy layer thus requiring that the state will not extend the reservations in promotion of SC/ST individuals who belong to the creamy layer said to SC/ST. Since the judgment in Nagraj many states found it difficult to fulfil all the conditions. Then the court decided to hear this application along with the petition in the High court. 

Creamy layer in reservation of other backward classes is that category where the people are wealthier overall more privileged than the other backward classes whereas non creamy layer are those other backwards classes who are not so privileged and which is not socially or economically better in the society. The creamy layer or non-creamy layer is based on your parents status in the society. The family annual income which is less than 8 lakh is counted under non creamy layer. Reservation in India is all about reserving access to seats in areas of jobs, exam, educational institutes etc. 

Vanshika Jaiswal
Vanshika Jaiswal


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