Year-end Review: What Courts Said on Affirmative Action in 2022

In a major impetus to the Union Government, the Supreme Court this year upheld the government’s plan to alter the concept of reservations by granting reservations based solely on economic criteria. It also ruled in favour of the Union Government in a case involving OBC reservations in medical courses. The larger issue of sub-classification within SCs surfaced while the Supreme Court ruled on the granting of reservation to the Vanniyar caste by the Tamil Nadu Government. And the issue of granting SC status to Dalit converts to other religions loomed in the background as the Madras HC decided on a plea by a person who, after conversion, had sought the benefits of reservation. In both cases, the larger questions remained unanswered since Constitutional benches are yet to rule on them.

The Leaflet breaks down how the Supreme Court and High Courts decided matters on affirmative action in 2022.

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1. Supreme Court upholds reservations based solely on economic criteria 

Janhit Abhiyan versus Union of India

On November 7, a Constitution bench of the Supreme Court upheld the granting of 10 per cent quota to economically weaker sections (‘EWS’) of citizens in admission to educational institutions, including private educational institutions, and to appointment to any office under the State.

Under challenge was the Constitution (One Hundred and Third Amendment) Act enacted in January 2019 by the Parliament, which added Articles 15(6) and 16(6) to the Constitution, enabling the State to make special provisions for the advancement of any economically weaker sections of citizens.

Subsequent to the Amendment, the Union Government fixed, among other things, an upper ceiling of INR 8 lakh annual income for determining the Economically Weaker Sections (EWS).

The Supreme Court, by 3:2 majority, upheld the validity of the 103rd Constitutional Amendment. Justices Dinesh Maheshwari, Bela M. Trivedi and J.B. Pardiwala, by their separate but concurring judgments, held that the Amendment does not violate any provisions of the Constitution, let alone the basic structure of the Constitution. The majority view also held that the 50 per cent cap on quota fixed by the Supreme Court in Indra Sawney versus Union of India (1992) is not inviolable or inflexible.

Justice S. Ravindra Bhat wrote a dissenting judgment on behalf of himself and then Chief Justice of India Uday Umesh Lalit, striking down the amendment, but only on the limited point of exclusion of Scheduled Castes (‘SCs’), Scheduled Tribes (‘STs’) and Other Backward Classes (‘OBCs’) from availing reservations under the EWS quota.

2. Supreme Court upholds OBC Reservations in All India Quota in PG NEET Admissions.

Neil Aurelio Nunes versus Union of India

On January 20, the Supreme Court upheld the validity of the 27 per cent reservation to OBCs in the All India Quota (‘AIQ’) scheme for undergraduate and postgraduate medical/dental courses from the academic year 2021-22 onwards.

Two weeks before delivering the judgment, the court issued an order upholding the constitutional validity of the OBC reservation in AIQ seats, but did not provide detailed reasons for its decision.

Under challenge was a notice issued by the Union Ministry of Health and Family Welfare in July 2021 providing 27 percent reservation for OBC (non-creamy layer) and 10 percent reservation for EWS in the 15 percent UG and 50 percent PG seats in AIQ from the academic year 2021-2022.

Rejecting the claims of general category candidates and doctors that such reservations goes against the merit-based nature of National Eligibility cum Entrance Test (Postgraduate) (‘PG NEET’) examination, the Supreme Court held that “reservations ensure that the opportunities are distributed in such a way that backward classes are equally able to benefit from such opportunities which typically evade them because of structural barriers”

However, the Supreme Court refrained from answering the question on reservations for EWS in PG NEET since a Constitution bench was yet to pronounce its decision on the validity of reservations based on economic criteria.

Under the AIQ scheme, 15 percent UG seats and 50 percent PG seats in State–run institutions are surrendered by the states to the AIQ. The remaining seats in the State institutions are reserved for candidates domiciled in the respective states.

3. Supreme Court strikes down reservations for Vanniyar Community in Tamil Nadu 

Pattali Makkal Katchi versus Mayileruperumal

On March 31, the Supreme Court upheld a Madras High Court decision striking down a Tamil Nadu law providing for an internal 10.5 per cent reservation to the Vanniyar caste in educational institutions and government jobs within the existing quota for OBCs.

Under challenge was the Tamil Nadu Special Reservation of Seats in Educational Institutions including Private Educational Institutions and appointments or posts in the services under the State within the Reservation for the Most Backward Classes and Denotified Communities Act, 2021, passed in February 2021 by the Tamil Nadu legislature to provide reservations for the Vanniyar community within the reservations that were being provided for Most Backward Classes (‘MBCs’). Accordingly, the sub-classified category of Vanniyars would have received 10.5 per cent of the 20 per cent reservations provided to MBCs.

The Supreme Court agreed with the state government’s position that they did not identify a new class, but merely re-allocated seats through further sub-classification within MBC reservations, but held that this sub-classification should have been based on reliable data.

The Supreme Court noted that there was no assessment or analysis done prior to the 2021 Act to back the claim that the Vanniyakula Kshatriyas were relatively more backward than the other MBCs and de-notified communities (‘DNCs’), and held the law to be violative of the fundamental rights of equality and non-discrimination, for denying equal opportunity to 115 other MBCs and DNCs in Tamil Nadu.

The petitioners in the case had contended that the Constitution (105th) Amendment, 2021, which restored the States’ power to recognise socially and educationally backward classes, was enacted six months after the Tamil Nadu Act was passed, in August 2021. Meanwhile, the state government had contended that 105th Amendment merely gave clarifications on the provisions of the 102nd Constitutional Amendment and therefore, will have retrospective effect. The Supreme Court did not accept this argument.

A seven-judge Constitution bench is currently seized of the matter on whether states should be allowed to create ‘sub-classifications’ within reservations, giving preferential treatment to specific castes within the SCs. A five-judge Constitution bench in E.V. Chinnaiah versus State Of Andhra Pradesh (2004) had held that any ‘sub-classification’ of the SCs would violate Article 14 of the Constitution

4. Reservation in promotions : Supreme Court issues clarifications

Jarnail Singh versus Lachhmi Narain Gupta

On January 20, a three-judge bench issued clarifications on certain aspects of its previous judgments confirming reservations in promotions: one of these aspects relate to the collection of data regarding inadequacy of representation.

The clarificatory judgment has its origins in the Supreme Court’s judgment in M. Nagaraj versus Union of India & Ors. (2006), which upheld the power of the Government, as enshrined in Article 16 (4A) of the Constitution, to provide for reservation in promotions.

The Nagaraj judgment laid down three controlling conditions that the State must meet prior to granting a SC/ST a reservation in promotion. First, the State must show the backwardness of the class. Second, it must show that the class is inadequately represented in the position/service for which reservations in promotion will be granted. Third, it must show that the reservations are in the interest of administrative efficiency.

In Jarnail Singh, the Supreme Court has held that collection of information regarding inadequacy of representation of SCs and STs cannot be with reference to the entire service or ‘class’/‘group’, and that the unit to be applied should rather be the ‘cadre’ or the grade/category of posts to which promotion is sought to be made.

Taking into account the data pertaining to a ‘group’, which would be an amalgamation of certain cadres in a service, would not give the correct picture of the inadequacy of representation of SCs and STs in the cadre in relation to which reservation in promotions is sought to be made since the rosters are prepared cadre-wise and not group-wise, the court said.

In regard to the yardstick to be applied for determining inadequacy of representation, the Court left such determination to the discretion of respective State Governments, as “the prevailing local conditions, which may require to be factored in, might not be uniform.”

5. Madras High Court dismisses a plea claiming reservation based on caste after conversion to another religion.

U Akbar Ali versus The State of Tamil Nadu And Another

On December 1, the Madras High Court dismissed a plea filed by a man, who after converting from Hinduism to Islam, had sought the benefits of reservation.

The one-judge bench cited a host of Supreme Court judgments that held that once someone born a Hindu converts to another religion which does not recognise the caste system, the person would cease to belong to the caste into which he was born.

Among the judgments cited by the high court is the Supreme Court’s judgment in G.Michael versus S.Venkateswaran (1951) where it was observed that when the member of a caste converts to Islam, he ceases to be a member of any caste. He becomes “just a Mussalman” and his place in Muslim society is not determined by the caste to which he belonged before his conversion, the court had ruled.

The high court also relied on the Supreme Court’s decision in S.Yasmine versus The Secretary, TNPSC (2013) where it was held a person cannot carry his community of birth even after conversion.

In an affidavit filed by the Union Government in November this year, it opposed the granting of Scheduled Caste (‘SC’) status to Dalits who have converted to Christianity and Islam, arguing that they already receive the benefit of reservation under the Other Backward Class (‘OBC’) quota in certain states.

The affidavit has been filed by the Union Government in response to a petition before the Supreme Court by the NGO, Centre for Public Interest Litigation (‘CPIL’) seeking SC status for Dalit converts to Christianity and Islam. The petition contends that the socio-economic disabilities of SCs continue to persist even after conversion and in this regard, there cannot be any distinction between SC converts to Sikhism and Buddhism, and converts to Christianity or Islam.

In January, the Supreme Court is likely to announce its decision on whether to wait for the completion of a report by a commission headed by former Chief Justice of India K.G. Balakrishnan which will not submit its report at least by October 2024.

6. Reserved categories notified by President in any state entitled to reservation in Delhi subordinate services: Delhi High Court

Ashu & Ors versus The Registrar General, High Court of Delhi and Ors

On November 2, the Delhi High Court held that all candidates belonging to reserved categories notified by the Presidential Order in any State or Union Territory would be entitled to the benefit of reservation in subordinate services in the National Capital Territory of Delhi.

While delivering this judgment, the high court had been dealing with a batch of petitions challenging the decision of the Delhi High Court establishment of refusing appointment to certain candidates for failing to submit any proof of being ordinarily residents of Delhi. These candidates were seeking appointment as Court Attendant/Room Attendant (Group-C), under the reserved category.

The rule of pan-India reservation would apply to recruitment to posts in the subordinate services in the National Capital Territory of Delhi, ruled the high court citing judgments delivered in Bir Singh versus Delhi Jal Board & Ors.  (2018) and Deepak Kumar & Ors. versus District and Sessions Judge, Delhi and Ors (2012), ruled the high court.

The high court also noted that Delhi enjoys a “special status in as much as it has the power to enact laws on any of the subjects in List II & List III of the Constitution”, citing the Supreme Court’s judgment in Govt. of NCT Of Delhi versus Union Of India (2018).

7. SC quashes Jharkhand decision to grant 100% quota to locals in govt jobs, upholding HC verdict

Satyajit Kumar & Ors. versus State of Jharkhand

On August 2, the Supreme Court quashed Jharkhand government’s 2016 notification granting 100% reservation to locals of 13 Scheduled Areas in government jobs, and upheld a Jharkhand judgment that termed the decision as  discriminatory and impermissible under the Constitution.

In 2016, the Jharkhand government had invited applications for appointment to the posts of Trained Graduate Teacher (TGT) in government secondary schools, while stating that only residents of certain scheduled districts shall be eligible to be appointed on the District Cadre Class III and Class IV posts, for a period of ten (10) years from the date of publication of the Notification.

The Supreme Court followed the law laid down by a Constitution Bench in the case Chebrolu Leela Prasad Rao and others versus State of Andhra Pradesh (2020), by which the 100% reservation given for Scheduled Tribes members in teaching posts in Scheduled Areas in Andhra Pradesh was struck down as unconstitutional.

The Supreme Court held the state government’s decision to be ultra vires of Articles 13(2), 14, 15, 16(2), 16(3) and 35(ai) of the Constitution.

“The citizens have equal rights, and the total exclusion of others by creating an opportunity for one class is not contemplated by the founding fathers of the Constitution of India.”, the Supreme Court observed.

Tushar Kohli is a journalist based in Delhi and Mohali.