Since the year 1950, reservation has always been an essential topic of discussion when it comes to the Constitution. In the year 1951, State of Madras v. Champakam Dorairajan was the first case which brought out a change in the provisions for reservation by demanding reservation for Scheduled Castes and Scheduled Tribes in educational institutions. Subsequently, there were cases of MR. Balaji v. State of Mysore and Indra Sawhney v. Union of India which further laid down important criteria for reservation.

In the year 2018, the case of Jarnail Singh v. Lachhmi Narain Gupta came up which provided reservation to Scheduled Castes and Scheduled Tribes in case of promotions in Government jobs. However, in this case, the exemption of ‘creamy layer’ from such reservation was also mentioned. The term ‘creamy layer’ was first discussed in the case of Indra Sawhney v. Union of India. ‘Creamy layer’ refers to a sub-class within a reserved class who have managed to move out of the backwardness due to their economic progress and due to their ability to step forward in the society. The introduction of the concept of ‘creamy layer’ has been a major breakthrough in the entire debate of reservations.

In the year 2019, the 104^th Amendment to the Indian Constitution was enacted which acted as an additive to the concept of reservation. Article 334 of the Indian Constitution makes provision for reservation of seats for Scheduled Castes and Scheduled Tribes in the Indian Parliament and State Legislatures. This particular provision was made for 70 years during the initial framing of the Constitution. It was done so because the framers of the Constitution expected the caste divide and societal casteism norms to cease within 70 years.

However, the same did not happen and the caste divide is still causing a lot of problem for the reserved class. Hence, the extension of 10 more years was added to these 70 years through the 104^th Constitutional Amendment and the provision is now made applicable till the year 2030. This brought a sigh of relief to the parliamentarians. The 104^th Amendment also did away with the provision of the nomination of Anglo-Indians to Lok Sabha and certain state assemblies, a precedent set by the first Lok Sabha.[1]

Prior to the 104^th Amendment, in the year 2018, the 102^nd Constitutional Amendment was enacted which brought out a major change in the reservation provisions. Before the 102^nd Amendment, the initial rule was that the States could make their own list of reserved classes. The change that was brought with the 102^nd Amendment was that the Centre took over the power to prepare a list of castes which were to be put under the purview of reservation. This change was brought through the insertion of Article 338B. article 338B made a provision for the setting up of the National Commission for Backward Classes. With this, the power was completely taken away from the hands of the State Governments.

With a 3:2 majority, the top court held that the amendment, which also led to the setting up of National Commission for Backward Classes (NCBC), took away states’ power to identify socially and educationally backward classes under their territory to grant quota in jobs and admissions to educational institutions.[2] This amendment came out more into the limelight when the State of Maharashtra brought out 16% of Maratha Reservation for employment and educational institutions. This Maratha Reservation quota was rejected by the Apex Court for two reasons:

1.     This 16% quota was prepared by the State Government of Maharashtra and as per the provisions of the 102^nd Amendment, the State Government did not have any power to prepare such a list. The power entirely vests with the National Commission for Backward Classes.

2.     The caste reservation quota in India is 15% for Scheduled Castes, 6% for Scheduled Tribes and 27% for Other Backward Classes(also known as Socially and Educationally Backward Classes). The addition of another 16% as per the Maharashtra State Government will make the total 64% which exceeds 50%. The limit of 50% was set as the highest cap for caste reservation in accordance with the case of Indra Sawhney v. Union of India.

The current issue in question is regarding reservations in promotions in Government employment. The issue had come up after the Udupi district administration sought a clarification from the DPAR (Department of Personnel and Administrative Reforms) during the promotion exercise.[3] In the case of M. Nagaraj and Others v. Union of India, the Supreme Court had stated the following[4]:

“The State is not bound to make a reservation for SC/ST in the matter of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely”

When the States and the Centre urged the Apex Court to re-visit the judgments and clarify the ambiguity of States being able to figure out on the reservation in promotion. However, the Apex Court clearly laid down that they gave their decision on this issue and they are not ready to re-open the debate. It is entirely up to the State Governments to determine the manner of implementation of the decision.