What does Reservation Mean:
Reservation is an act of withholding certain things for being enjoyed by the
particular person/community and no other person/community has the right to enjoy
the reserved thing.
The Rationale for Reservation:
The reason for incorporating the provision of reservation in the constitution of
India was to promote social justice i.e. there shall be no discrimination
against any person on grounds of backwardness and equal opportunity shall be
provided to every person. The constitution framers never intended to include the
provisions of reservation for the elimination of poverty.
Is the Right to Education a fundamental right?
Right to Education was not a part of fundamental rights till 1992. It was a part
of directive principles of state policy under Article 45 which provides:
The State shall endeavor to provide, within ten years from the commencement of
this Constitution, for free and compulsory education for all children until they
complete the age of fourteen years
In 1992, interestingly it was not the parliament which makes Right to Education
a fundamental right but the Honorable Supreme Court in the landmark 'Capitation
fee case' (Miss Mohini Jain vs State Of Karnataka And Ors,1992) held that Right
to Education is a fundamental right under Article 21.
It took nearly a decade after this judgment for the parliament to bring the
amendment in the constitution for incorporating 'Right to Education' as a
fundamental right. This was done by the 86th amendment,2002. Following changes
were made by this amendment in the constitution :
Inclusion of Article 21-A, It makes it mandatory for the states to provide
education to the children between the age of six to fourteen years by
Amendment in Article 45, So that it be read as follows:
The State shall endeavor to provide early childhood care and education for all
children until they complete the age of six years.'
Inclusion of Clause (k) in Article 51-A which cast a fundamental duty on the
parent or guardian to provide opportunities for education of child/ward between
the age of six to fourteen years.
Sadly this amendment was enforced after 8 years of its enactment, in the year
2010. But in my view, this amendment was really enforced after the enactment of
Right to Education Act, however in a negligent manner. So, in the present
scenario right to education is a fundamental right.
Reservation in Educational Institutions:
In the original constitution, there was not any express provision for the
reservation of seats in educational institutions. Governments used the dictum of
the directive principles of state policy for the formulation of reservation
policies for educational institutions.
Reservation in Educational Institutions
can be segregated in the following manner:
In 1951 Madras government order (G.O.) apportioning seats between various castes
according to their numerical strength for admission into Government medical and
engineering colleges in a prescribed ratio, was struck down by apex court for
violating Article 15(1) of the Constitution (State of Madras vs. Champakaran
To overturn this decision clause (4) was inserted in Article
15 in the constitution by the 1st amendment in 1951 which enables the state for
making any special provision for the advancement of any socially and
educationally backward classes of citizens or the Scheduled Castes and the
Scheduled Tribes. Thereafter reservations were made in educational institutions
including the reservations in private educational institutions by invoking this
Honorable Supreme court in Indira Sawhney v. Union of India
famously known as 'Mandal Case
' capped the reservation limits up to 50% of total seats and for
reservations for backward classes concept of the creamy layer was introduced.
Howsoever court permitted the reservations beyond 50% for the people living in
Till 2003 Reservations were made by governments in private educational
institutions. But in 2003 Honorable supreme court in T.M. Pai Foundation v.
Union of India
held that the state cannot make the reservation of seats in
admissions in privately run educational institutions.
This position was
reiterated by the court in 2005 in P.A. Inamdar v. State of Maharashtra
overturn these decisions, Parliament in 2005 added clause (5) in Article 15 by
the 93rd amendment. This clause enables the states to make any special
provision, by law, for the advancement of any socially and educationally
backward classes of citizens or 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. The validity of this amendment was upheld by the
honorable Supreme Court in Ashok Kumar Thakur v. Union of India
Reservations for the persons with benchmark disabilities are made mandatory
through Persons with Disabilities Act, 2016 (Section 32) for the educational
institutions receiving aid from the governments. This Reservation shall be a
minimum of 5% of total seats.
Till 2019, Social and Educational backwardness was the sole criterion for the
reservations. But by 103rd amendment states were enabled to make reservations
for the economically weaker section of the society. This reservation will be
additional 10% to the existing reservations i.e. 50% (as stated by supreme court
in 'MANDAL' case) + 10% = 60% of the total seats. The petition challenging this
amendment is pending before the Honorable Supreme Court.
We have to understand two facts clearly that:
All the provisions in the constitution are merely enabling provisions and
governments are not bound to make reservations.
It is not the Caste which is the basis of reservation but it is the backwardness
of the class which forms the basis of reservation.
Despite being the limit of 50% quota in reservations provided by the honorable
supreme court, Various state governments have made reservations exceeding this
limit for the political gains. Haryana in 2016 passed a bill that created
reservations for the Jats and five other groups by including them in a new
category called backward classes
This move was stayed by the High Court of
Punjab and Haryana in November 2018, the Maharashtra assembly unanimously passed
a bill that provided for 16 percent reservation in higher education and public
services to the Maratha community. But similar reservation provided to the
community in 2014 was stayed by the Bombay High Court, pointing to reservations
exceeding 50 percent.
Recently In 2019, Madhya Pradesh Government passed an ordinance to increase the
cumulative quota to 63%. A petition is pending before the High Court of Madhya
Position of the reservation quota will be more clear after the verdict of
honorable Supreme Court in the petition pending before it assailing increased
reservation for the economically weaker sections.
While Concluding this Article here I am Providing the details of reservation
quotas in premier Institutions like IIT's and IIM's.
|General – Economic Weaker Sections (GEN-EWS)
|Other Backward Classes (OBC-NCL)
|Scheduled Caste (SC)
|Scheduled Tribes (ST)
|Benchmark Persons with