In 1979, the Morarji Desai government established the Second6 Backward Classes Commission, chaired by B P Mandal, a Member of Parliament, to investigate the conditions of the socially and educationally backward classes and recommend measures for their advancement, in accordance with Article 340 of the Constitution. In 1980, the commission issued its report, which identified 3743 castes as socially and educationally backward. Except for the scheduled castes (SCs) and scheduled tribes, they account for nearly half of the population (STs). The commission recommended that the Other Backward Classes (OBCs) be given 27 percent of government jobs, bringing the total reservation for all (SCs, STs, and OBCs) to 50 percent. After ten years, the V P Singh government declared a 27 percent reservation for OBCs in government jobs in 1990. In 1991, the government of Narasimha Rao made two changes:
(a) In the 27 percent quota, preference is given to the poorer sections of the OBCs, i.e., reservation is based on economic criteria, and
(b) An additional 10% of jobs reserved for poorer (economically backward) sections of higher castes who are not covered by any existing reservation schemes.
The Supreme Court examined the scope and extent of Article 16(4), which provides for job reservation in favour of backward classes, in the well-known Mandal case (1992). Though the Court rejected a 10 percent additional reservation for lower castes, it upheld the constitutional validity of a 27 percent reservation for OBCs under certain conditions, namely,
(a) The OBCs' advanced sections (the creamy layer) should be excluded from the list of reservation beneficiaries.
(b) Promotions should not include reservations; reservations should only be made for initial appointments. Any existing reservation in promotions is only valid for a period of five years (i.e., upto 1997).
(c) Except in exceptional circumstances, the total reserved quota should not exceed 50%. Every year, this rule should be followed.
(d) In the case of unfilled (backlog) vacancies, the "carry forward rule" applies. However, it should not deviate from the 50% rule.
(e) To investigate complaints of over-inclusion and under-inclusion in the list of OBCs, a permanent statutory body should be established.
The government has taken the following actions in response to the Supreme Court's rulings:(a) The Ram Nandan Committee was formed to identify the OBCs' creamy layer. In 1993, it submitted a report, which was accepted.
(b) An act of Parliament established the National Commission for Backward Classes in 1993. It considers whether castes should be included in or excluded from lists of backward castes for the purpose of job reservation.
(c) In 1995, the 77th Amendment Act was enacted to overturn the decision regarding reservations in promotions. It added a new provision in Article 16 that allows the state to provide for reservation in promotions of any state services in favour of SCs and STs who are underrepresented in state services. Again, with retroactive effect from June 1995, the 85th Amendment Act of 2001 provides for 'consequential seniority' in the case of promotion by virtue of the rule of reservation for government servants belonging to the SCs and STs.
(d) The 81st Amendment Act of 2000 rendered the ruling on backlog vacancies null and void. It also added a new provision in Article 16 that allows the state to treat the year's unfilled reserved vacancies as a separate class of vacancies to be filled in the following year or years. Such vacancies are not to be combined with the vacancies of the year in which they are filled to determine the 50% reservation ceiling on the total number of vacancies for that year. In a nutshell, it eliminates the 50% reservation cap in backlog vacancies.
(e) The Tamil Nadu Reservations Act of 1994 was placed in the Ninth Schedule by the 76th Amendment Act of 1994 to protect it from judicial review because it provided for 69 percent reservation, far exceeding the 50 percent ceiling.
The Government of India uses the term Other Backward Class (OBC) to classify castes that are educationally and socially disadvantaged. Along with Scheduled Castes and Scheduled Tribes, it is one of India's official population classifications (SCs and STs). The more pressing question is whether affirmative action programmes based on irrelevant criteria like caste and religion should be allowed to take precedence over merit and efficiency criteria.
"Injustice arises when equals are treated unequally, as well as when unequals are treated equally," writes Aristotle. Choosing the proper distribution basis for making a preference is fraught with difficulties. Individual need, status, merit, or entitlement have all been suggested as appropriate bases for benefit distribution in appropriate circumstances. "It requires not only that there should be no exclusion from access on grounds other than those appropriate or rational for the good in question, but that the grounds considered appropriate for the good should themselves be such that people from all sections of society have an equal chance of satisfying them," Bernard Williams says, elucidating the true meaning of equality of opportunity.
We cannot include sections of the population identified solely by the characteristics that figure in the grounds for allocating the good when defining a "section of society," because this will further exclude some sections of the population. Everyone will agree that merit is an appropriate criterion for admission to a medical college with limited seats. Excluding potential candidates on grounds other than merit now amounts to a prima facie denial of equal opportunity.
The categorization of scheduled castes and scheduled tribes as a class on the basis of which the classification could be justified as just and reasonable within the meaning of Articles 15(1) and 16(1) has been emphasised in Achill BharitayaSoshitKaramchari Sangh because these classes stand on a substantially different footing from the rest of the Indian community in our Constitution. Other weaker sections in this context, he believes, refer to dismally depressed categories comparable economically and educationally to Scheduled Castes and Scheduled Tribes, rather than other "backward classes." To put it another way, in his opinion, the classification of Scheduled Castes and Scheduled Tribes as a special category could be justified under Article 15(1) and Article 16(1), whereas classification based on backward classes might need to be confirmed under Article 15(4) and 16(1)(4).
On a simple reading of Articles 15 and 16, one might conclude that clause (4) of Article 15 is an exception to the rest of that article's provisions as well as clause (2) of Article 29, and that clause (4) of Article 16 is an exception to the rest of that article's provisions. In other words, while Article 15's clause (4) permits what the rest of the article or Article 29's clause (2) prohibits, Article 16's clause (4) permits what the rest of the article prohibits. This was, in fact, the Supreme Court's initial impression as well. This impression persisted until some judges in the case of State of Kerala v. N.M. Thomas decided that clause (4) of Article 16 was not an exception to clauses (1) and (2) of that article. In A.B.S.K. Sangh v. Union of India, Chinnappa Reddy, J. reiterated this view, much more emphatically, in his concurring opinion, and it was finally accepted by the Court in Indra Sawhney v. Union of India (the Mandal case).
As a result, clause (4) of Article 16 is not an exception to the rest of the article; rather, it is a facet of the equality of opportunity guaranteed in clause (1) of that article, as well as an effective method of realising and implementing it. Clause (4) does not negate anything in Article 16 clauses (1) and (2), but rather gives them positive reinforcement and content. It performs the same function as clauses (1) and (2), namely, ensuring equality of opportunity (2). As a result, it is clearly a fundamental right, just like clauses (1) and (2) or any other provision of that article.
