Reservation: The Constitutional Scheme

It too was inserted because of a case. Indra Sawhney had held that article 16(4) does not permit reservation in promotion.

Article 16(4B), Eighty-first Amendment 2000. Unfilled vacancies of a year reserved for the Scheduled Castes and Scheduled Tribes under clause (4) or (4A) may be considered as a separate class of vacancies to be filled in any succeeding year, and shall not be considered together with the vacancies of the year in which they are filled for determining the ceiling of fifty per cent on reservation on the total number of vacancies of that year.

It answers the carry-forward problem that Indra Sawhney had addressed by holding that the fifty per cent rule applies to each year.

Article 15(5), Ninety-third Amendment 2005. 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 institutions referred to in clause (1) of article 30.

Two things about it. It reaches PRIVATE institutions, aided or unaided, which article 15(4) did not; and it excludes minority institutions under article 30(1). Its validity was upheld in Ashoka Kumar Thakur v. Union of India, worked in [Backward Classes, the Creamy Layer and the Ceiling].

Articles 15(6) and 16(6), One Hundred and Third Amendment 2019. Special provision, including reservation of up to ten per cent, for the economically weaker sections of citizens other than the classes mentioned in articles 15(4) and 15(5) and in article 16(4). Upheld in Janhit Abhiyan v. Union of India, worked in [Reservation in Promotion, and the Ten Per Cent for the Economically Weaker].

Article 335. The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State. The proviso, added by the Eighty-second Amendment 2000, permits relaxation in qualifying marks or standards of evaluation for reservation in promotion.

The pattern, and it is the examinable point

Every major reservation provision except article 16(4) was inserted to answer a judicial decision.

What that pattern shows. Reservation in India is the product of a continuous argument between Parliament and the Supreme Court, in which each decision has been answered by an amendment and each amendment tested against the basic structure. An answer that traces the pattern is worth much more than one that lists the clauses.

And the pattern has a limit. In Kesavananda Bharati terms, an amendment may not destroy the basic structure, and M. Nagaraj, Jarnail Singh and Janhit Abhiyan are the cases in which the amendments were tested against it.

What the scheme does NOT contain

No provision makes reservation compulsory. Every clause says "nothing shall prevent the State", so there is no fundamental right to a reservation, and a State that provides none is not in breach.

No provision fixes a percentage, except article 15(6) and article 16(6), which cap the economically weaker sections at ten per cent. The fifty per cent rule is judicial, from Balaji and Indra Sawhney.

No provision defines a backward class. Article 340 provides for a Commission to investigate, and article 342A now provides for a Presidential list, but the content is left to identification.

And no provision provides for religion-based reservation. The categories are backward classes, Scheduled Castes, Scheduled Tribes and economically weaker sections, and Indra Sawhney held that occupational groups, sects and denominations among non-Hindus can be socially backward classes, which is a different thing from reserving for a religion.

A worked example

A State wishes to reserve twenty-seven per cent of posts in its services, twenty-seven per cent of seats in private unaided colleges, and to provide reservation in promotion for the Scheduled Castes.

The posts. Article 16(4). It must be satisfied that the class is backward and inadequately represented in the services, and the total reservation must respect the fifty per cent rule.

The private unaided college seats. Article 15(5), and the provision must be made BY LAW, which article 15(5) requires in terms and article 15(4) does not. Minority institutions under article 30(1) are excluded.

The promotion. Article 16(4A), and on M. Nagaraj as modified by Jarnail Singh the State must have quantifiable data on the inadequacy of representation and must consider the effect on efficiency under article 335; the backwardness requirement was held invalid in Jarnail Singh so far as the Scheduled Castes and Scheduled Tribes are concerned.

And the arithmetic. The fifty per cent ceiling applies to the reservations under articles 15(4), 15(5) and 16(4); on Janhit Abhiyan the ten per cent for the economically weaker sections sits outside it.

What this does NOT mean

It does not mean reservation is an exception to equality. N.M. Thomas and Indra Sawhney hold the opposite, and the point is the next chapter.

It does not mean the clauses are self-executing. Each requires the State to make a provision, and several require satisfaction on facts that are judicially reviewable.

And it does not mean the scheme is settled. State of Punjab v. Davinder Singh changed it in 2024, and the questions about the creamy layer for the Scheduled Castes and Scheduled Tribes are open.

Quick revision

All enabling: "nothing shall prevent the State". Article 16(4), original: a backward class of citizens not adequately represented in the services, in the opinion of the State. Article 15(4), First Amendment 1951, after Champakam Dorairajan, overriding article 29(2) as well. Article 16(4A), 1995, promotion, with consequential seniority added in 2001. Article 16(4B), 2000, backlog vacancies outside the year's ceiling. Article 15(5), 2005, private institutions aided or unaided, by law, minority institutions excluded. Articles 15(6) and 16(6), 2019, up to ten per cent for the economically weaker sections. Article 335, efficiency, with the 2000 proviso permitting relaxation. The pattern: every provision except article 16(4) answers a judicial decision.

Test yourself

1. What kind of provisions are the reservation clauses? Enabling clauses. Each says that nothing in the article shall prevent the State from making a provision, so no clause compels a reservation and there is no fundamental right to one.

2. Set out the four elements built into article 16(4). The beneficiary is a backward class of citizens; the trigger is inadequate representation in the services under the State; the satisfaction is that of the State, subject to judicial review; and the clause is enabling rather than mandatory.

3. Which judicial decision produced each of article 15(4) and article 16(4A)? Article 15(4) was inserted by the First Amendment 1951 after Champakam Dorairajan held that article 29(2) admits of no exception. Article 16(4A) was inserted by the Seventy-seventh Amendment 1995 after Indra Sawhney held that article 16(4) does not permit reservation in promotion.

4. What does article 15(5) add to article 15(4), and what does it require that article 15(4) does not? It extends special provision to admission to educational institutions including private institutions, aided or unaided, while excluding minority institutions under article 30(1). It requires the provision to be made BY LAW, which article 15(4) does not.

5. Where does the fifty per cent rule come from? Not from the text. It is judicial, stated in M.R. Balaji and settled in Indra Sawhney, and on Janhit Abhiyan it applies only to the reservations envisaged by articles 15(4), 15(5) and 16(4) and not to the ten per cent for the economically weaker sections.