The Constitutional Basis of Reservation in India

Article 334A, inserted by the same amendment, defers their operation: the reservation of seats for women shall come into effect after an exercise of delimitation undertaken for that purpose after the relevant figures for the first census taken after the commencement of the amendment have been published, and shall cease on the expiration of fifteen years from that commencement.

Article 334 provides that the reservation of seats for the Scheduled Castes and Scheduled Tribes shall cease on the expiration of eighty years from the commencement of the Constitution, the period having been extended repeatedly, most recently by the One Hundred and Fourth Amendment with effect from 25 January 2020, which also ended the nomination of Anglo-Indians.

Article 335. The claims of members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in making appointments; the proviso, inserted by the Eighty Second Amendment, permits relaxation in qualifying marks or lowering of standards of evaluation for reservation in matters of promotion.

Parts IX and IXA: local government

Article 243D. Seats shall be reserved in every Panchayat for the Scheduled Castes and Scheduled Tribes in proportion to population, allotted by rotation; not less than one third of those reserved seats shall be for women of those groups; and not less than one third of the total seats filled by direct election, including the seats reserved for women of those groups, shall be reserved for women. The offices of Chairpersons are reserved in the manner the State legislature provides.

Article 243T makes corresponding provision for Municipalities.

Note the contrast with article 330A. Reservation for women in local bodies has operated since 1993 and is mandatory; reservation for women in the House of the People and the State Assemblies was enacted in 2023 and awaits census and delimitation.

The machinery of identification

Article 341. The President may by public notification specify the castes, races or tribes deemed to be Scheduled Castes in relation to a State or Union territory, after consultation with the Governor where it is a State; Parliament may by law include or exclude, and save by such law the notification may not be varied.

Article 342 does the same for the Scheduled Tribes.

Article 342A, inserted by the One Hundred and Second Amendment with effect from 15 August 2018, provides for the specification of socially and educationally backward classes. As amended by the One Hundred and Fifth Amendment, clause (1) speaks of the Central List, clause (2) allows Parliament to include or exclude from it, and clause (3), also inserted in 2021, provides that notwithstanding clauses (1) and (2) every State and Union territory may by law prepare and maintain, for its own purposes, its own list, whose entries may differ from the Central List.

Article 338 National Commission for Scheduled Castes; article 338A National Commission for Scheduled Tribes; article 338B, inserted by the One Hundred and Second Amendment, the National Commission for Backward Classes, with duties of investigation, monitoring, inquiry into complaints and advice on socio-economic development.

Article 340. The President may appoint a Commission to investigate the conditions of socially and educationally backward classes. This is the provision under which the Kalelkar and Mandal Commissions were appointed.

Why the 2018 and 2021 amendments matter

The One Hundred and Second Amendment gave the National Commission for Backward Classes constitutional status and inserted article 342A. It was then held that the effect was to take away the States' power to identify their own backward classes, leaving that to the President and Parliament.

The One Hundred and Fifth Amendment of 2021 reversed that reading in the text, by distinguishing the Central List in clauses (1) and (2) from the State's own list in clause (3), so a State may again maintain a list for its own purposes whose entries differ from the Central List.

That sequence, a judicial construction followed by a corrective amendment, is the same pattern seen in [Judicial Review of Legislation, and Where It Came From] and in the property cases.

A worked example

A State wishes to reserve thirty per cent of seats in private unaided engineering colleges for its own list of backward classes.

Which provision? Article 15(5), which extends to private educational institutions whether aided or unaided, other than minority institutions under article 30(1).

Which list? After the One Hundred and Fifth Amendment, the State's own list under article 342A(3).

What limits? The fifty per cent ceiling from Indra Sawhney, the exclusion of the creamy layer, and identification on proper material.

Before 2006 the same measure would have been impossible for an unaided institution, which is why the Ninety Third Amendment was passed.

The cases

Facts. Indra Sawhney v. Union of India, AIR 1993 SC 477, concerned office memoranda reserving twenty seven per cent of Central Government posts for socially and educationally backward classes on the Mandal Commission's report.

Held, by nine judges. Reservation under article 16(4) was upheld; the total should not ordinarily exceed fifty per cent; the creamy layer among the backward classes must be excluded; reservation in promotion was not permissible under article 16(4); and caste may be the starting point of identification where a caste is also a social class.

Why it matters here. It supplies the limits that the enabling provisions themselves do not contain, and article 16(4A) was inserted in 1995 specifically to answer its holding on promotion.

Facts. Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1, challenged the Ninety Third Amendment and the Central Educational Institutions (Reservation in Admission) Act 2006, providing twenty seven per cent reservation for other backward classes in central educational institutions.

Held, by the Supreme Court. The Ninety Third Amendment and the Act were upheld so far as State-maintained and aided institutions were concerned, with the creamy layer to be excluded from the other backward classes; the question of private unaided institutions was left over.

Why it matters here. It is the case that carries article 15(5) into effect and confirms the creamy layer requirement in education as well as in employment.

Distinctions

What beginners get wrong

"Article 16(4) gives a right to reservation." It is an enabling provision, and confers no fundamental right on an individual to be appointed against a reserved post.

"Article 15(4) and 15(5) are the same." Clause (4) authorises special provision generally; clause (5), of 2006, extends it to admission in private institutions, aided or unaided, other than minority institutions.

"The 106th Amendment is not in force." Articles 330A, 332A and 334A took effect on 16 April 2026; what is deferred by article 334A(1) is the operation of the reservation itself, until delimitation after the first census taken since the amendment's commencement.

"States lost the power to list backward classes." That was the position after the One Hundred and Second Amendment; article 342A(3), inserted in 2021, restored a State list for the State's own purposes.

Limits and criticism

The design is layered rather than coherent, and a provision inserted to answer one decision sits beside another inserted to answer a different one.

Nothing in the text states a ceiling; the fifty per cent limit is judicial, which is why the One Hundred and Third Amendment could exceed it.

Article 334 has been extended five times, which raises the exit question the text seems to answer and does not.

And the identification machinery is now split, with a Central List and State lists that may differ, so a person may be backward in one column and not in the other.

Quick revision

1. Article 15(4): First Amendment 1951, 18 June 1951, after Champakam Dorairajan.
2. Article 15(5): Ninety Third Amendment, 20 January 2006, private institutions other than minority ones.
3. Articles 15(6) and 16(6): One Hundred and Third Amendment, 14 January 2019, economically weaker sections, ten per cent.
4. Article 16(4A): Seventy Seventh Amendment 1995, amended by the Eighty Fifth; article 16(4B): Eighty First Amendment 2000.
5. Articles 330 and 332 legislatures; 330A, 332A and 334A women, One Hundred and Sixth Amendment 2023, in force 16 April 2026, operation deferred to delimitation.
6. Articles 243D and 243T: one third for women in Panchayats and Municipalities, operating since 1993.
7. Articles 341, 342, 342A, 338, 338A, 338B and 340 are the identification machinery.

Test yourself

1. Name the four Part III provisions inserted by amendment for education and employment, with dates. Article 15(4), by the First Amendment 1951 with effect from 18 June 1951. Article 15(5), by the Ninety Third Amendment with effect from 20 January 2006, extending special provision to admission to educational institutions including private ones, aided or unaided, other than minority institutions under article 30(1). Articles 15(6) and 16(6), by the One Hundred and Third Amendment with effect from 14 January 2019, for economically weaker sections other than the classes in clauses (4) and (5), each with a ten per cent maximum. Article 16(4A) by the Seventy Seventh Amendment with effect from 17 June 1995, and article 16(4B) by the Eighty First Amendment with effect from 9 June 2000.

2. Distinguish the enabling from the mandatory provisions. The Part III provisions are enabling and permissive: each says that nothing in the article shall prevent the State from making the provision described, and none confers a right on an individual, so article 16(4) creates no fundamental right to be appointed against a reserved post. The provisions in Parts IX, IXA and XVI are mandatory: articles 330, 332, 243D and 243T say that seats shall be reserved, in stated proportions, and they create an entitlement to the reserved seat. The first group is about what a State may do; the second is about what the Constitution has already done.

3. What is the present position of reservation for women in the legislatures? Articles 330A and 332A, inserted by the One Hundred and Sixth Amendment 2023 and in force from 16 April 2026, reserve as nearly as may be one third of the seats filled by direct election in the House of the People and in every State Legislative Assembly for women, including one third of the seats reserved for the Scheduled Castes and Scheduled Tribes. Article 334A(1) defers the operation of that reservation until an exercise of delimitation undertaken for the purpose after the relevant figures for the first census taken after the amendment's commencement have been published, and limits it to fifteen years from commencement. Local government reservation for women under articles 243D and 243T has operated since 1993.

4. Trace what the 2018 and 2021 amendments did to identification. The One Hundred and Second Amendment, with effect from 15 August 2018, gave the National Commission for Backward Classes constitutional status in article 338B and inserted article 342A on the specification of socially and educationally backward classes. That was construed as removing the States' power to identify their own backward classes, leaving identification to the President and Parliament. The One Hundred and Fifth Amendment of 2021 answered the construction in the text, confining clauses (1) and (2) of article 342A to the Central List and inserting clause (3), by which every State and Union territory may by law prepare and maintain its own list for its own purposes, with entries that may differ.