Dynamics of Equality of Opportunity: Analysis in the Light of Reservation Based on Economic Status

Paper Details 

Paper Code: RP-VBCL-29-2025

Category: Research Paper

Date of Publication: April 20, 2025

Citation: Mr. Vipin Viswan & Dr. Anusree A, “Dynamics of Equality of Opportunity: Analysis in the Light of Reservation Based on Economic Status", 2, AIJVBCL, 439, 439-455 (2025).

Author Details: Mr. Vipin Viswan, Assistant Professor, Government Law College Ernakulam

Dr. Anusree A, Associate Professor, Government Law College Ernakulam

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ABSTRACT

Equality in India is a dynamic concept and ensures equal opportunity without discrimination. At inception of the constitution, Articles 15(4) and 16(4) providing for affirmative action, aimed at addressing historical inequalities faced by socially deprived sections such as SC, ST’s for centuries, so that they can have a voice in administration, education and public employment. Hence in 1950’s affirmative action based on caste system was a revolutionary step to foster more inclusive society, given the economic and social dominance of the general category at that time. Later decades witnessed land reform movements were coordinated by Government and upheld by judiciary, giving predominance to DPSP’ which negatively impacted the economic conditions of general category. The rise of OBC in 1970’s paved way for Mandal Commission Report recommending for 27% of reservation for them in public services which sparked protests. But the apex court upheld it, setting up a cap of 50% on total reservations and introduced creamy layer concept excluding wealthier class of OBC’s. As the economic disparities grew within the general category, 103rd Constitution Amendment introduced a maximum of ten percentages reservation to economically weaker sections other than SC, ST and non creamy lawyer OBC which was upheld in Janhit Abhiyan case. In Davinder Singh, court upheld sub classifications within Schedule Castes so as to provide targeted benefits to the most disadvantaged group. These decisions indicate an evolving view of equality emphasizing inclusion over caste. Thus there is a policy shift signaling transition to a system which prioritizes financial status ensuring that no class is left behind in this modern world.

 Keywords: Equality of opportunity,  Reservation, Economic Status, Caste System, Inclusive Society.

INTRODUCTION

Equality is a dynamic concept and ensures equal opportunity without discrimination. At the inception of the Constitution, in order to ensure social justice, reservation benefits which were  given to Scheduled Castes[1] and Scheduled Tribes[2] and was later extended to socially and educationally backward sections also. Thus equality of opportunity is not a static concept but an evolving one changing with social realities of the time. In two land mark decisions, Supreme Court had departed from caste based reservation policy and adopted a policy based on financial status as evident from Janhit Abhiyan v. UOI[3] and also in State of Punjab v. Davinder Singh[4] . Janhit Abhiyan case revolves upon the Reservation policy relating to Economically weaker Sections[5], based on economic status in the background of the enactment of 103rd Constitutional Amendment Act 2019. The amendment reserved ten percentage seats in educational institutions and public services for EWS category. The honorable Supreme Court upheld ten percentage reservations to economically weaker sections other than SC, ST and non-creamy layer of Other Backward classes.[6] The review petition upon this decision was subsequently dismissed. Davinder Singh decision gave authority to State Governments to create sub classifications within Schedule Castes so that targeted benefits are provided to the most disadvantaged group. Present study dwells upon the evolution of reservation policy pertaining to equality of opportunity since the commencement of the Constitution and also analyses the far reaching consequences of this shift in the reservation policy from caste to economic status in the light of these two decisions.

HISTORY AND DEVELOPMENT OF RESERVATION POLICY IN INDIA

The advent of reservation in Indian soil could be traced to the last decades of the nineteenth century and considerable interest in the progression of backward classes were shown by some princely states. Initiatives of Maharaj Chhatrapati Shahuji, Government of India (Schedule Castes) Order 1936 based on 1931 census report etc. are few initiatives in this regard.[7]  The Constituent assembly debates also inform about the new nation's commitment to ensure to all classes substantive equality of opportunity. At that time, it was to address historical inequalities which the socially deprived sections were facing for centuries, policy measures including reservation were provided to them so that they can have a voice in administration, and can have access to education and  public employment.

CONSTITUTIONAL PROVISIONS RELATING TO AFFIRMATIVE ACTION

The basis of affirmative action is based on the concept of equality. At the time of inception of the Constitution, the concept of equality was in its infancy, though the right was crystallized by way of recognition in International instruments. India had incorporated several provisions providing special treatment for the disadvantaged based on the concept of equality. Fundamental Rights are provided in Part III of the Constitution and are enforceable through constitutional courts. Article 12 of the Constitution defines State, against whom citizens/ persons can enforce fundamental rights. The Courts can declare any law as void if it violates the fundamental rights as per Article 13. Article 14 to 18 forms the principal basis for reasonable classification, where under, affirmative action could be undertaken. Article 14 guarantees Fundamental right to Equality. Article 15 and 16, which are citizen specific, provides for advancements of SC/ ST/OBC and prohibits discrimination. These provisions provide for reservation in admission in educational institutions and in public employment respectively for these backward classes. Part IV provides for Directive Principles of State Policy, of which Article 46 directed the State to take initiatives for promoting the educational and economic interests of the weaker sections and also to ensure their protection from all forms of exploitation. Reservation in seats of legislature for backward classes is provided in the Part VI of the Constitution.

            These provisions were enacted as it was evident that, in the normal process of development of the young nation, only those sections of the society who already possessed land, education, social status etc. ie general categories could be benefitted. For those who were long deprived of these, there was ardent task before the constitutional makers to bring them to the mainstream. Hence their upliftment was indispensable for the development of the young nation. This necessitated for giving special facilities and privileges to these backward classes so that they could participate as equals along with others. Given these objectives, Indian constitutional structure specifically provide for affirmative action in the form of compensatory discrimination.[8]Hence reservation to these backward classes was the main gateway to step into the path of their overall development. Thus in 1950’s reservation for SC and  ST’s were based on caste system . It was to overcome the depression which they were facing for centuries and to also to ensure their progress and liberation from poverty and unemployment. It was a revolutionary step at that time.

CHAMPAKAM DORAIRAJAN CASE AND ITS CONSEQUENTIAL IMPACT

It is true that the constitution endeavors to promote equality and reservation system was introduced in India to address historical injustices over a long time, promoting social equity. Reservation was provided in education, employment and legislature. The Directives,  though are non justiciable, sought to achieve the objective of justice, liberty equality and fraternity and thus promoting affirmative action by the state. At that time, the existing social conditions were such that the resources were still in the hands of general category. Hence effect of positive discrimination did not have much detrimental impact on them. They still controlled politics and economics in the country. However there were also resentments against reservations, contending that it would perpetuate divisions in the society and also hinder the progress of meritorious persons belonging to certain communities. This view has become evident when the communal Government Order prevalent in Madras, providing reservation on the basis of caste, was challenged on the ground that it violated Articles 15 and 29(2) of the Constitution, in Champakam Dorairajan v. State of Madras.[9]The apex court struck down the Government Order as unconstitutional. Moreover when a step towards land reform movements acquiring land from general category for the benefit of backward classes were made by the Government, it was faced with resentment and challenge.In  Jagwant Kaur v. State of Maharashtra[10] , a Government order which required land for the purpose of constructing a colony for backward classes was held as unconstitutional.[11]To nullify the effects of these decisions, parliament enacted First Constitutional Amendment Act 1951,  which resulted in the insertion of clause (4) to Article 15[12].Thus state was authorized to make special provisions for the benefit of SC, ST and socially and educationally backward classes, which paved way for implementing reservation policies for their upliftment.

JUDICIAL CONTRIBUTION AFTER ‘CHAMPAKAM 

Though Article 15(4) provided for special provision for socially and educationally backward classes and SC and ST, it was merely an enabling provision and was not creating any constitutional obligation.[13] As this provision was silent as to criteria for determining backwardness and quantum of reservation, even after Champakam, challenges regarding nature and extent of reservation continued. The supreme court through series of cases while upholding reservation had clarified the issues relating to reservation in various cases like M R Balaji v. State of Mysore[14], Devadasan v. Union of India[15] , R Chitralekha v. State of Mysore,[16] P Rajendran v. State of Madras,[17]  A Periakaruppan v. State of Tamil Nadu[18]. In most of the cases, Court had considered criteria to determine backwardness for reservation under Articles 15 and 16.In most cases, Court had emphasized that backwardness should be based on both social and educational backwardness. Court had also reiterated that, though caste can be a relevant factor to determine backwardness, it shall not be the sole test. Court had opined that reservation shall not continue indefinitely and Government shall review the test of backwardness to determine whether a class has reached a state when reservation is not necessary. Thus during that period though reservation and concept of equality of opportunity was mainly based on caste, there was also a judicial trend to include other factors like economic factors.

LAND REFORM MOVEMENTS AND IMPACT ON AFFIRMATIVE ACTION

            It could be seen that during the time of dawn of independence and in subsequent decade, the so called general categories were landlords and other backward classes were mainly tenants. Hence affirmative action was revolutionary step at that time. Thus, the concept of equality of opportunity at the dawn of independence and first few decades was equality of opportunity extended to backward classes for their progress and liberation. However later decades witnessed land reform movements jointly coordinated by Government and judiciary. It was witnessed that land reform legislations were being upheld by judiciary by giving predominance to Directive Principles. This is evidenced from the decisions from Shankari Prasad v. Union of India [19]  to Kesavananda Bharathi v. State of Kerala.[20]

            In Shankari Prasad v. Union of India,[21] First Constitutional Amendment Act 1951 was challenged which approved Zamindari abolition laws, restricting Fundamental right to property. Holding that parliament is empowered to amend fundamental rights, court upheld First Constitutional Amendment Act . Taking the same view, court upheld Seventeenth Constitution Amendment Act 1964 in Sajjan Singh v. State of Rajasthan[22] .Seventeenth Constitution Amendment Act  was intended to promote Agrarian reforms amending Article 31 A and placing those legislations under IX schedule of the Constitution. In I C Goloknath v. State of Punjab [23], also Seventeenth Constitutional amendment Act was challenged by the petitioners whose land were taken away under  land reform initiatives by the state. In that case, court held that parliament cannot amend fundamental right. But Court applied prospective overruling principle seeking to preserve the constitutional validity of Seventeenth Constitutional Amendment Act.In Kesavananda Bharathi v. State of Kerala[24], 24th Constitutional Amendment Act 1971, was challenged. Court invoked basic structure principle and held that parliament is empowered to amend any part of the constitution in such a manner as not to abrogate the basic structure of the Constitution. Court also defined the scope of parliament’s power to restrict property rights while implementing land reform policy and redistribution of land to cultivators. This decision put an end to the legal challenge to land reform legislations by former zamindars. After that no other major decisions regarding land reforms were made. These decisions invariably resulted in breakdown of feudal system in India. Land reform movements were more successful in Kerala and West Bengal and in some North Indian States. Thus the economic conditions of the so called general categories began to be deteriorated as most of their lands were taken away, though they continue to enjoy some of the privileges.

INDIRA SAWHNEY: AN EPOCH MAKING

            Major changes could thus be witnessed in 1970’s, especially in the wake of post emergency social set up. Intermediary group OBC gained momentum. There was demand that the reservation which were originally envisaged for SC’s and ST’s may extended to OBC’s also. Mandal Commission which was appointed in 1979 to study the economic, social and educational background of OBC’s recommended for 27% of reservation for them in public services. Though the report was ignored by successive governments, it was later implemented in 1990’s which resulted in wide spread social protests. It was challenged in Indira Sawhney v. union of India[25] as violating the rights of general candidates who were not receiving any concessions from the Government.  In this case, Supreme Court upheld Mandal Commission report giving 27% reservation given for OBC.  However reservation limit was capped to 50%. Creamy layer concept based on economic criteria was introduced. Economically affluent persons of backward classes were thus kept out of reservation. However there were protests against this and opposition parties wanted to continue reservation based on caste. Meanwhile reservation Ceiling was made different for different states by amendments. While some states tried to properly implement the decision, some states implemented the same by diluting the standards. Thus it may be stated that the concept of  equality of opportunity became inclusive to include other deserving backward categories other than SC/ST. Thus, apart from caste , economic criteria also was evolved as a criteria with respect to affirmative action policy.

CONSTITUTIONAL AMENDMENTS SUBSEQUENT TO INDIRA SAWHNEY AND JUDICIAL INTERPRETATION

            To overcome the effect of Indira Sawhney decision[26] parliament enacted Seventy Seventh Constitution Amendment Act 1995, Eighty First Constitution Amendment Act, 2000, Eighty Second Constitution Amendment Act 2000 and Eighty Fifth Constitution Amendment Act, 2001.By virtue of Seventy Seventh Constitution Act Art 16(4A) was inserted into the Constitution.  As Indira Sawhney did not permit to make reservation in promotion, Article 16(4A) enabled the State to make reservation for SC/ ST in the matters of promotion as long as state believed that they are not adequately represented in Government services.  Similarly, as Indira Sawhney had put a cap on reservation at 50%, Eighty First Constitution Amendment Act incorporated Article  16(4B) whereby it was provided that the ceiling of 50% would apply only on the reserved vacancies pertaining to the year in which the vacancies arise. Thus the backlog reserved vacancies of previous years should be considered as a separate group without any ceiling limit. In the same vein, as relaxation in qualifying marks were not permitted by Indira sawhney, by amending Article 335 by virtue of Eighty Second Constitution Amendment Act, 2000, relaxation in qualifying marks in the examination for promotion of SC/ST were permitted. Eighty Fifth Constitution Amendment Act 2001, amended Art 16(4A) to the effect of granting consequential seniority also, to the SC/ ST persons getting reservation in promotion. All these amendments were challenged in M Nagaraj and Others v. Union of India[27]. Court upheld the Constitutional validity of all these amendments subject to the conditions of creamy layer, 50% ceiling limit, and compelling reasons viz., backwardness, inadequate representation and administrative efficiency while implementing the amendments. It was also opined that reservation shall not be continued indefinitely. Thus it may be stated that though judiciary upheld caste based reservations, it was also inclined to adopt economic criteria to be incorporated in the affirmative action policies.  Simultaneously in 1990’s emerged the concept of Economically Weaker Section[28] of forward class. Some political parties also supported this as socially amicable solution. Thus along with the trend of avoiding affluent sections of backward classes  from the benefit of affirmative actions, evolution of the concept of giving reservation to EWS of forward class came to surfaced in Indian society.

RESERVATION FOR OBC IN EDUCATIONAL INSTITUTIONS

            Next stage was in 2004,whereby 27% OBC reservation was introduced in education institutions also by new Government as an extension of Mandal Commission decision. There were protests against this to which Government did not yield. In 2005, 93rd Constitutional Amendment Act was enacted which introduced Clause 5 to Article 15.[29] Many protest groups like Youth for equality had raised protest against this caste based reservations especially in higher education institutions and they challenged 93rd Constitution Amendment Act, before Supreme Court in Ashok Thakur v. Union of India and Ors[30]  in 2008.But the amendment  was approved by the apex court with respect to Government institutions and aided institutions.  But Court held that exclusion of creamy layer is an essential requirement for providing reservation to OBC. The 93rd Constitution Amendment Act was again under challenge in Pramathi Education Trust case[31] relating to private unaided educational institutions and court upheld the validity of the amendment with respect to private unaided educational institutions also under Article 21 A by which state is empowered to secure free and compulsory education.

102nd CONSTITUTION AMENDMENT ACT AND AFTERMATH

            As reservation relating to OBC and concept of creamy layer became debatable issues, parliament enacted 102nd Constitution Amendment Act providing Constitutional status to National Commission for Backward Classes[32]. The Amendment inserted Articles 338B and 342A and also brought changes in Article 366. Article 338 B gave authority to NCBC to examine complaints and welfare measures relating to Socially and Educationally Backward Classes. Art 342 A gave authority to President to specify Socially and Educationally Backward Classes (SEBC) in various states and Union Territories in consultation with Governor of that state. Thus states were stripped of their rights to identify the backward classes. This amendment was upheld in Jaishri laxman Rao Patil v. Chief Minister Maharashtra[33]. The  court held that President alone has the authority to specify SEBC.[34]But later by 105th Constitution Amendment 2021, states were restored with their power to designate OBC status. Thus by way all these amendments the parliament has brought about certain modulations in affirmative action policy within the frame work of the Constitution so as “to cater to the requirements of citizenry with real and substantive justice in  view.”[35]Thus the trend of the courts to carve out benefits of affirmative action to other backward classes apart from SC and ST had become crystallized. However caution was also taken to see that affluent sections of these backward classes been excluded from the reservation benefit. Hence it may be stated that though caste was predominant criteria in affirmation policy, slowly economic criteria was also gaining momentum.

103rd CONSTITUTION AMENDMENT: CREATION OF EWS RESERVATION

            By these years, the general category had become economically deprived class though they were technically forward class. This situation became evident especially with the advent of era of liberalization. Political opinion that affirmative action policy should be inclined in favour of economically weaker sections of forward classes gained momentum. There were also protests against caste based reservation by organizations like Youth for justice.[36] It was in this background 103rd Constitution Amendment was passed in 2019. 103rd Constitution Amendment Act was an attempt to balance social fabric by including economically deprived forward class. The Amendment Act was enacted with an objective to fulfill the directive of Article 46 of the Constitution and also that economically weaker sections get a fair opportunity for getting admission in higher education and in public services. Parliament amended Articles 15 and 16 whereby clause (6) was added to both articles and state was empowered to provide a reservation of  maximum of ten percentage to EWS other than SC, ST and non-creamy lawyer OBC in higher educational institutions and also in public services. [37]Thus States were empowered to provide reservation on the basis of economic backwardness determined by the criteria such as  ownership in land and its size, annual income etc. In fact, in 2005, Sinho committee had made a recommendation for making reservation on the basis of economic criteria.

            This amendment had resulted in wide protests and was challenged before the Supreme Court. In Janhit Abhiyan v. UOI, [38]Supreme Court upheld 103rd Constitution Amendment and EWS reservation. The review petition filed against this decision was also dismissed. Now the beneficiaries can avail the quota for admission to educational institutions and public offices. Subsequently,in 2024, Supreme Court, in State of Punjab v. Davinder Pal Singh, held that Scheduled caste is not a homogenous group and sub classification of scheduled caste for reservation is constitutionally permissible. The decision was made overruling the decision in Chinniah v. State of Andra Pradesh[39], wherein it was held that sub classification of castes placed in Scheduled caste is unconstitutional. In Chinnaih, Supreme Court had held that the constitution had created a legal fiction by means of which Scheduled caste constitute a class as a whole and State cannot subdivide them. The sub classification would not be in consonance with the Presidential order under Article 341 and violates Article 14 of the Constitution. Court held that the rationale given in Indira  Sawhney  for classification of OBC into backward and more backward, recognizing their interse backwardness, cannot be applied with respect to Scheduled caste.However,the apex court in Davinder Pal Singh[40] held that as per Indira Sawhney decision, it is constitutional to classify backward class into backward and more backward class. Court also held that the provisions of Articles 341,342 and  342 A are in pari matria and hence sub classification which is permissible within backward class must be applicable to scheduled caste also. Moreover Supreme Court in Indira Sawhney had interpreted backward class to include other backward Class and Schedule caste and Schedule Tribe.

 JANHIT ABHIYAN CASE: AN ANALYSIS

             In this case, Supreme Court, by 3:2 majority[41] upheld EWS quota reservation over and above 50% reservation to SC, ST and OBC.

The issues Considered by the court were as follows

(a)     Whether 103rd Constitutional Amendment has violated the Basic structure by  providing reservation only  on the ground of economic criteria?

(b)   Whether 103rd Constitutional Amendment is violative of Equality code and thereby Basic structure doctrine for excluding SC/ST/OBC from the EWS quota?

(c)    Whether 103rd Constitutional Amendment violates the Basic structure by breaching the ceiling limit of 50%?

            On all these issues,[42] majority held that it is not violative of Basic structure doctrine. Court reasoned that reservation being an instrument of affirmative action by state ensures an all-inclusive approach towards the goal of a democratic and classless society thus counteracting inequalities. Reservation is an instrument for inclusion of not only of SEBC, but also for inclusion of any disadvantaged sections. Hence reservation on the basis only  on economic criteria does not violate basic structure of the Constitution.

Court also opined that treating Economic Weaker Sections as a separate class is a reasonable classification and hence excluding SC/ ST and OBC from EWS reservation is not violative of equality code and does not violate basic structure principle. It only balances the requirements of nondiscrimination and compensatory discrimination.

            It was also held that 50% ceiling limit is not being an inflexible rule; giving reservation to EWS over and above 50% does not violate Basic structure principle. Moreover it was also held that ceiling limit is applicable only for reservation clauses (4) & (5) of Article 15 and Article 16(4) of the Constitution. Court also opined that there is a need to have time span for reservation.

            Minority judgment rendered by Justice Ravindra Bhat for himself and Chief Justice U ULalit, held that reservation on the basis of economic status does not per se violate the basic structure doctrine.  But held that, excluding poor among SC/ST/OBC from EWS reservation is unconstitutional. Minority judgment held that our constitution does not permit exclusion and hence 103rd Constitution Amendment undermines the very basis of social justice and thereby Basic Structure doctrine. Minority also held that breaching 50% also would result in compartmentalization.

The judgment has been visited with several criticisms. Most common being that, it has taken India’s affirmative action policy from group centric approach to individual based income parameters.[43] Moreover it is also criticized that as backward class being birth oriented, it is much easier to identify the target group so as to provide reservation, whereas income parameters being flexible concept collection of data is an arduous task.[44]

            At the same time it is also to be noted that the preambular objectives and the directives mandates the state to remove inequality and backwardness from the society. Jurisprudential analysis on affirmative action based on precedents reveal that the concept of equality and equal opportunity as enshrined Articles 14 to 16 does not mean that all persons must be subjected to same laws. It has been recognized that having regard to the disparities existing among persons, they cannot be treated alike by the applying same laws. Thus right to equality implies right to classify. It is true that very concept of classification is based on the idea inequality. But judiciary has been tackling this illogicality over several years and in this endeavour, it has not discarded the demand for equality nor deprived the legislature of its right to classify.[45]It has adopted a via media approach of rational compromise in the form of reasonable classification, the success of which depending on treating like alike and not treating unlike alike.[46] Courts have in many cases reiterated that Article 16(1) being a facet of Article 14 also permits reasonable classification.[47]Hence the argument that same treatment cannot be meted out to SC, ST, OBC on one hand and EWS on other, also seems to be based on sound reasoning.

            EWS is now being implemented in the backdrop of calls for caste based census by opposition parties. They argue that if the data based on caste census is published actual deserving classes  for the benefit of affirmative action could be easily identified  which will pave way for equality in true sense.

 DAVINDER SINGH: AN ANALYSIS

 In State of Punjab v. Davinder Singh,[48] the apex court had upheld the constitutional validity of sub classifying Scheduled castes into backward class and more backward class. Based on empirical data, the court held that sub classification would not offend article 14 of the Constitution. Court also held that state legislature is competent to sub classify Scheduled castes, though exclusive power for the same is conferred  on President and Union  by virtue of Article 341 which is criticized by several scholars as ‘opening flood gates to new arena of federalism’[49]and conflicts between Union and states . The court’s decision actually marks a significant shift regarding interpretation of reservation of scheduled castes. Though it is true that all the communities within Scheduled castes have faced several discrimination for centuries, there were not common. Some communities were more progressive and were able to educate themselves and occupy high official positions where some others were still left behind devoid of education and stricken by poverty. The court by acknowledging these diverse levels of disadvantages within Scheduled caste community, tries to ensure equitable distribution of benefits.

 CONCLUSION

            It is true that age old practice of caste system played a significant role for the origin and evolution of reservation system in our country. It was introduced by way of correction to remedy the historical injustice faced by backward classes. However in the threshold of seventy five years of independence, it is essential to reexamine the reservation system in the broader interest of society, as part of advancing transformative constitutionalism.[50]

As equality is a dynamic concept and is evolving with social realities, State cannot ignore the existence of various manifestations and instances of backwardness in tune with these new realities. Thus, it may stated that Equality of opportunity in the 21st century in contrast to the same concept at the dawn of the constitution seems no more based on caste, but based on economic criteria by including economic backward of the erstwhile forward class and also by giving preference those inadequately represented within the disadvantaged  class. Thus the recent trend of reservation seems to be all inclusive. Now states are burdened with ardent task to conduct more studies and surveys in this regard, so that Justice-social, economic and political is realistically achieved.

* Assistant Professor , Government Law College Ernakulam

** Associate Professor, Government Law College Ernakulam

[1] Hereinafter referred as SC

[2] Hereinfater referred as ST

[3] Janhit Abhiyan v. UOI 2022 SCC OnLine SC 1540

[4] State of Punjab v. Davinder Singh 2024 SCC OnLine SC 1860

[5] Herein after referred as EWS.

[6] Hereinafter referred as OBC.

[7]Prof J P Yadav and Ananya, ‘Analysing the Reservation System in India’,(2023) Economics and Politics Weekly, https://www.academia.edu/108594880/ANALYSING_THE_RESERVATION_SYSTEM_IN_INDIA_First_Authors_Name_Prof_Dr_J_P_Yadav  accessed on 02-03-2024

[8]  Monalisa Chandra & Pratiksha Kumar, ‘Reservation Policy in India Scope, Development, History and Employment Rights’ Vol. 2. Iss. 4 [2023], International Journal of Human Rights Law Review 1, 10.

[9]Champakam Dorairajan v. State of Madras AIR 1963 SC 649

[10] Jagwant Kaur v. State of Maharashtra AIR1952BOM461

[11] Ibid.

[12]Article 15(4) stipulates that nothing in the Article or in Article 29 barred 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.

[13]Mahek Shivnani,’The Fight for Backwardness - Elucidating Casteism and Reservation in India’ (2020)https://probono-india.in/blog-detail.php?id=113#:~:text=In%20R.,necessary%20criteria%20to%20determine%20backwardness. accessed 03-03-2024

[14]  M R Balaji v. State of Mysore AIR 1963 SC 649

[15] Devadasan v. Union of India AIR 1964 SC 179

[16]R Chitralekha v. State of Mysore AIR 1964SC 1823

[17] P Rajendran v. State of Madras AIR 1963 SC 702

[18]Periakaruppan v. State of Tamil Nadu AIR 1971 SC 2303

[19]Shankari Prasadv. Union of India AIR 1951 SC 458

[20]Kesavananda Bharati v State of Kerela (1973) 4 SCC 225

[21]  Supra note 21.First Constitutional Amendment Act was challenged.

[22]Sajjan Singh v. State of Rajasthan AIR 1965 SC 845

[23] AIR 1967 SC 1643

[24]Supranote22

[25] Indira Sawhney v. Union of India AIR1993SC477

[26] Ibid

[27]M Nagaraj and Others v. Union of India 2006 (8) SCC 212

[28] Herein after referred as EWS.

[29] Cl. (5) of Article. 15 reads: 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 or 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 the educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30.

[30] Ashok Thakur v. Union of India and Ors (2008) 6 SCC 1138

[31] Pramathi Educational and cultural Trust and others v. Union of India AIR 2014 SC 2114

[32] Herein after referred as NCBC

[33]Jaishri laxman Rao Patil v. Chief Minister Maharashtra LL 2021 SC 243

[34] It is to be noted that to overcome the decision in Jaishri Laxman, parliament has enacted. Article 342A(3) has been inserted in the 105th Constitutional Amendment Act, which specifically states that the state governments have the authority to notify OBCs on the state list, removing their handicap caused by the Apex Court ruling preventing them from including any new OBCs for reservation purposes.

[35] Supreme Court in Janhit Abhiyan case supra note 5.

[36] They challenged caste based reservation in Maharashtra.

[37]  103rd  Constitution Amendment Act 2019

Amendment of Article 15. ‘(6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making,— (a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and

 (b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) 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, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent. of the total seats in each category.

 Explanation.—For the purposes of this article and article 16, "economically weaker sections" shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.’.

Amendment of article 16. (6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in 4 clause (4), in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category.".

[38] Supra note 5.      

[39] Chinniah v. State of Andra Pradesh (2005) 1 SCC 394

[40] Supra note 6

[41] Mr. Justice Dinesh Maheshwari, Hon’ble Ms. Justice Bela M. Trivedi and Hon’ble Mr. Justice J.B. Pardiwala, constituted the majority

[42]  1. The 103rd Constitution Amendment cannot be said to breach the basic structure of the Constitution by permitting the State to make special provisions, including reservation, based on economic criteria. 2. The 103rd Constitution Amendment cannot be said to breach the basic structure of the Constitution by permitting the State to make special provisions in relation to admission to private unaided institutions. 3. The 103rd Constitution Amendment cannot be said to breach the basic structure of the Constitution in excluding the SEBCs/OBCs/SCs/STs from the scope of EWS reservation.

[43] Ambar Kumar Ghosh, ‘The new Economically Weaker Sections (EWS) Quota: The Changing idea of Affirmative Action’,23 November 2022 https://www.orfonline.org/expert-speak/the-new-economically-weaker-sections-ews-quota   accessed 20 January 2025

[44] Vidhu Verma ‘Taking the EWS Quota Seriously: Is It Fair and Just?’ Volume 53 Issue 1, March 2023, Social change  https://www.researchgate.net/publication/369194984 accessed 18 January 2024

[45] Mohammad Shujat Ali and others v. Union of India and others, AIR 1974 SC 1631

[46] Supra note 5 

[47] State of Kerala and Another v. N.M. Thomas and Others, (1976) 2 SCC 310, M; Indira sawhney; Royappa v. State of Tamil Nadu and Another, AIR 1974 SC 555; Govt. of Andhra Pradesh v. P.B. Vijaykumar and another, AIR 1995 SC 1648. Just as Art16(4) is considered as an aspect of Art 16, other clauses of Article 16 must also be considered in pari materia.

[48] Supra note 6

[49]   K V Kailash Ramanathan, ‘State of Punjab v. Davinder Singh : Opening the Flood Gates to the New Realm of Contested Federalism,’, 18 November 2024, Law School Policy Review https://lawschoolpolicyreview.com/2024/11/18/state-of-punjab-v-davinder-singh-opening-the-floodgates-to-a-new-realm-of-contested-federalism/#:~:text=The%20Supreme%20Court's%20ruling%20in,arena%20for%20Centre%2DState%20conflicts.  accessed  28 December 2024

Court made a distinction between identification and sub classification. Held that identification alone is included in Art 341 and that is different from sub classification, which is only apportionment of seats already identified under Article 341.Court held that Articles 15(4) and 16(4) confers independent source of legislative power.

[50]Supra note 5