Rajiv Gandhi National University

of Law
Constitution Project

Analysis of Article 16(4) with

Reference to Article 335

Submitted to:- Submitted by:-

Dr. Lakhwinder Singh Husain
Ratlamwala
Roll no. :-16087
 TABLE OF CONTENTS
1. INTRODUCTION..................................................................................3
2. ARTICLE 16(4): EXPLAINATION.....................................................4
a) Constitutional Amendments...............................................................8
i) Article 16 (4A)....................................................................................8
ii) Article 16(4B).....................................................................................9
3. ARTICLE 335: EXPLAINATION......................................................10
4. RELATIONSHIP BETWEEN ARTICLE 16(4) AND 335...............11
5. ARTICLE 16(4) AND HOHFELDIAN CONCEPT OF RIGHT.....12
6. ARTICLE 16(4) AND THE THEORY OF JUSTICE.......................14
7. DRAWBACKS......................................................................................17
8. CONCLUSION.....................................................................................19
1. INTRODUCTION
Indian Constitution is considered to be the supreme law in the country. It is a living
document and a permanent instrument which makes the government system work. It lays
down the framework defining fundamental political principles, establishes the structure,
procedures, powers and duties of government institutions and sets out fundamental
rights, directive principles and the duties of citizens. It is the longest written constitution
of any sovereign country in the world.1

The Constitutions has various parts such as Fundamental Rights, Fundamental Duties,
Directive Principles of State Policy etc. Part III of the Indian Constitution deals with the
Fundamental Rights. The aim of the Fundamental Rights is to preserve individual liberty
and democratic principles based on equality of all members of society. 2 All of the these
rights have the objective that no person should be treated equally irrespective of the
caste, sex or creed.

Article 16 falls under the purview of Fundamental Rights and it talks about  equality of
opportunity in matters of public employment and prevents the State from discriminating
against anyone in matters of employment on the grounds only of religion, race, caste, sex,
descent, place of birth, place of residence or any of them. It creates exceptions for the
implementation of measures of affirmative action for the benefit of any backward class of
citizens in order to ensure adequate representation in public service, as well as reservation
of an office of any religious institution for a person professing that particular religion.3

Article 16(4) of the Constitution provides for the reservation of appointments and post for
the backward classes in case of inadequate representation in public employment. This
provision acted as panacea for the people belonging to the backward classes and also
acted as a remedy for the historical discrimination of such classes. The State should have
adequate data to show the backwardness of these classes and it also has to keep in mind

1
M.V. PYLEE, INDIA'S CONSTITUTION 3 (S. Chand & Co. 1997).
2
GRANVILLE AUSTIN, THE INDIAN CONSTITUTION: CORNERSTONE OF A NATION 114 (Oxford University
Press, New Delhi, 1999).
3
DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA 1972 (13th ed., Nagpur: Wadhwa & Co., 2003).
Article 335, which talks about maintenance of efficiency which is held as a constitutional
limitation on the discretion of the State in making reservations.

2. ARTICLE 16(4): EXPLAINATION

Article 16(4) of the Indian Constitution states that –

Nothing in this article shall prevent the State from making any provision for the
reservation of appointments or posts in favor of any backward class of citizens which, in
the opinion of the State, is not adequately represented in the services under the State.4

This clause expressly provides for the reservation of appointments or posts in favour of
any backward class of citizens which, in the opinion of the State is not adequately
represented in the services under the State. The power conferred on the State can only be
exercised in favour of a backward class and therefore, whether a particular class of
citizens is backward, is an objective factor to be determined by the State. While the State
has necessarily to ascertain whether a particular class of citizens is backward or not,
having regard to acceptable criteria, it does not have the final say in the matter. State's
determination is justiciable and may be challenged if it is based on irrelevant
considerations.

Explaining the nature of Art. 16(4), the Supreme Court has stated in Mohan Kumar
Singhania v. Union of India5, that it is "an enabling provision" conferring a discretionary
power on the state for making any provision or reservation of appointments or posts in
favour of any backward class of citizens which, in the opinion of the state, is not
adequately represented in the service of the state. Article 16(4) neither imposes any
constitutional duty nor confers any Fundamental Right on any one for claiming
reservation.

The scope of clause (4) first came for consideration in Devadasan v. Union of India6,
where the Court was called upon to pronounce upon the constitutionality of the 'carry
forward rule' framed by the Central Government to regulate appointment of persons
belonging to backward classes in public services. By a resolution of the year 1950, the
4
INDIA CONST. art. 16, cl. 4.
5
Mohan Kumar Singhania v Union of India, AIR 1992 SC 1.
6
Devadasan v Union of India, A.I.R. 1964 S.C. 179.
government had indicated its intention to reserve 12.5 per cent and 5 per cent of the total
available vacancies in any one year respectively for the Scheduled Castes and Scheduled
Tribes. Supplementary instructions issued by the government in 1952 provided that if in
any particular year the number of suitable candidates available was less than the number
of reserved posts, the posts so in excess shall be treated as unreserved for that particular
year but in the next year the number of posts which would have been otherwise reserved
for such candidates in the normal course would be augmented by the number which had
been converted into non-reserved posts in the preceding year. This process of carrying
over which was to operate for one year at a time under the 1952 instructions was directed
to operate for two years at a time by an amendment in 1955.

The Court by a majority of four to one invalidated not the rule of carry forward as such
but the rule as amended in 1955 on the ground that the power vested in the State under
Article 16(4) could not be so exercised as to deny reasonable equality of opportunity in
matters of public employment to members of classes other than backward. The object of
that provision, the majority thought, was to ensure that the backwardness of backward
classes did not unduly handicap their members from securing public employment and the
State, when it made reservations in favour of backward classes did in effect provide to the
backward classes an opportunity to other classes, in matters of public employment. From
is premise, it went further to hold that where the reservation was so excessive in its
character as to deny in practice a reasonable opportunity to other classes it was a fraud
upon the Constitution. In the instance case, the number of vacancies reserved by virtue of
the carry forward rule could not go upto 54% of the total vacancies, which was not below
the 50% mark laid down in Balaji v. State of Mysore7, the rule was declared invalid.

The Devadasan judgement was ruled out in the Mandal Commission8 case. It was said
that the carry forward rule rule is valid so long as the actual reservation in a particular
year does not exceed 50 per cent of the vacancies. The 50 per cent limit has to be worked
out on the basis of the total vacancies in a particular year and not on the basis of the total
strength in a cadre or service. But barring extraordinary situations 50` per cent limit on

7
Balaji v State of Mysore, A.I.R. 1963 S.C. 649.
8
Indra Sawney v Union of India, A.I.R. 1993 S.C. 477.
reservations has to be strictly observed. This position has been changed by inclusion of
clause (4-B) in Article 16 by the Constitution (Eighty-first Amendment) Act, 2000.

To understand fully the Article 16(4), four of the following terms which appear in the
said Article needs to be fully understood :- (a) State (b) Backward Class of Citizens (c)
Opinion (d) Not adequately represented.

(a) STATE- The word ‘State’ has the same meaning as defined in Article 12 of the
Constitution. ‘State’ means, the Central Government, State Governments, Parliament,
State Legislatures, and all local e.g. Panchayat, Port Trust etc.) or other authorities within
the territory of India or under the control of the Government of India.

(b) BACKWARD CLASS OF CITIZEN- For the term 'Backward Class of Citizens’, it
was contended before the Supreme Court whether SCs and STs can be classified as
backward classes in order to entitle them to the benefits of reservation under Article 16(4)
of the Constitution. The Supreme Court had held that:

" Article 16 in the first instance by clause (2) prohibits discrimination on the ground,
inter-alia, of religion, race, caste, place of birth, residence and permits an exception to
be made in the matter of reservation in favour of backward classes of citizens. The
expression 'backward class' is not used as synonymous with 'backward caste' or
'backward community'. The members of an entire caste or community may be in the
social, economic and educational scale of values at a given time be backward and may
on that account be treated as a backward class, but that is not because they are members
of a caste or community, but because they form a class. In its ordinary connotation the
expression 'class' means a homogenous section of the people grouped together because
of certain likenesses or common traits, and who are identifiable by some common
attributes such as status, rank, occupation, residence in a locality, race religion and the
like".9

Thus, the SCs and STs would be deemed to be ‘backward class’ within the meaning of
Article 16(4). In case of classification of backward classes, the Supreme Court in the case
of Indra Sawhney has opined as follows:

9
Triloki Nath v State of Jammu & Kashmir, 1 1969 SCR (1) 103.
 A caste can be and quite often is a social class in India. If it is backward socially,
it would be backward class for the purpose of Article 16(4). Among non-Hindus,
there are several occupational groups, sects and denominations, which, for
historical reasons, are socially backward. They too represent backward social
collectives for the purpose of Article 16(4).
 Neither the Constitution nor the law prescribes the procedure or method of
identification of backward classes. Nor is it possible or advisable for the court to
lay down any such procedure or method. It must be left to the authority appointed
to identify the backward classes. It can adopt such method/ procedure as it thinks
convenient and so long as its survey covers the entire populace, no objection can
be taken to it. Identification of the backward classes can certainly be done with
reference to castes among, and along with, other occupational groups, classes and
sections of people. One can start the process either with the occupational groups
or with castes or with some other groups. Thus one can start the process with the
castes, wherever they are found, apply the criteria (evolved for determining
backwardness) and find out whether it satisfies the criteria. If it does-what
emerges is a “backward class of citizens” within the meaning of and for the
purpose of Article 16(4). Similar process can be adopted in the case of other
occupational group, communities and classes, so as to cover the entire populace.
The central idea and overall objectives should be to consider all available groups,
sections and group/ class encompassing and overwhelming majority of the
country’s population, one can well begin with it and then go to other groups,
sections and classes.
 It is not necessary for a class to be designated as a backward class that it is
situated similarly to the scheduled castes/scheduled tribes.
 ‘Creamy layer’ can be, and must be excluded.
 It is not correct to say that the backward class of citizens contemplated in article
16 (4) is the same as the socially and educationally backward classes referred to in
article 15(4). It is much wider. The accent in article 16(4) is on social
 backwardness. Of course, social, educational and economic backwardness are
closely inter-twined in the Indian context.10

(c) OPINION-Another word occurring in Article 16(4) is ‘Opinion’. Thus, what is a

matter of opinion cannot be mandatory nor is it subjected to any limitation of time.

(d) NOT ADEQUATELY REPRESENTED- Hon’ble Supreme Court has clarified the
meaning of ‘not adequately represented’ as under:

“The adequacy of representation of a particular class in the services under the State is a
matter within the subjective satisfaction of the appropriate Government. The judicial
scrutiny in that behalf is the same as in other matters within the subjective satisfaction of
an authority.”11

Therefore, the ‘State’ has the first form an opinion about which castes/ community could
be classified as the ‘backward class’ and whether the class so identified is adequately
represented in the services under the state or not. After completion of this exercise,
nothing shall prevent the State from making reservations. According to the Supreme
Court, Article 16(4) does not confer any right on the SCs and STs and there is no
Constitutional duty imposed on the Government to make reservations for SCs/ STs, either
at the initial stage of recruitment or at the stage of promotion. In other words, Art.16(4)
confers a discretionary power on the State to make reservations of appointments in favour
of backward class of citizens which in its opinion, are not adequately represented in the
services of the State.12

a) Constitutional Amendments
i) Article 16 (4A)-

In the Indra Sawhney’s case, Supreme Court also held that reservation in promotion is
unconstitutional but permitted the reservation, for Scheduled Castes and Scheduled
Tribes to continue for a period of five years. Consequent to this, the Constitution was
amended by the Constitution (Seventy-seventh Amendment) Act, 1995 and Article 16(4-

10
Indra Sawney v Union of India, A.I.R. 1993 S.C. 477.
11
Rajendran v Union of India, 1968 SCR 721.
12
SANDEEP MUKHERJEE, CONSTITUTIONAL PROVISIONS FOR RESERVATION IN SERVICES 1-12 (New Delhi,
2007).
A) was incorporated. This Article enables the State to provide for reservation, in matters
of promotion, in favour of the Scheduled Castes and Scheduled Tribes. The fact that the
words “Backward class” used in Article 16(4) have been instituted in Article 16(4-A) by
the words “SCs & STs”, itself precludes consideration of making reservation in
promotion in favour of any other category of citizens.

Supreme Court in the case of Ajit Singh II13, stated that the primary purpose of Art. 16(4)
is due representation of certain classes in certain posts. But, along with Art. 16(4), there
are Arts. 14, 16(1) and 335 as well. Articles 14 and 16 lay down' the permissible limits of
the affirmative action by way of reservation which may be taken under Arts. 16(4) and
I6(4-A). While permitting reservations, Art. 14 and 16(1) also lay down certain
limitations at the same time. Article 335 ensures that the efficiency of administration is
not jeopardized.

The doctrine of equality of opportunity in Art. 16(1) is to be reconciled in favour of

backward classes under Art. 16(4) in such a manner that Art. 16(4), while serving the
cause of backward classes shall not unreasonably encroach upon the field of equality. It is
necessary to strike such a balance so as to attract meritorious and talented persons to the
public services. It is also necessary to ensure that the rule of adequate representation in
Art. 16(4) for the backward classes and the rule of adequate representation in promotion
for SC/ST under Art. 16(4-A) do not adversely affect the efficiency in administration as
warranted by Art. 335.

ii) Article 16(4B)-

The Constitution (Eighty-First Amendment) Act, 2000, has added Art. 16(4B) to the
Constitution. The Amendment envisages that the unfilled reserved vacancies in a year
are to be carried forward to subsequent years and that these vacancies are to be treated
as distinct and separate from the current vacancies during any year. The rule of 50%
reservation laid down by the Supreme Court is to be applied only to the normal
vacancies and not to the posts of backlog of reserved vacancies. This means that the

13
Ajit Singh II v State of Punjab, AIR 1999 SC 3471.
unfilled reserved vacancies are to be carried forward from year to year without any

limit, and are to be filled separately from the normal vacancies .

3. ARTICLE 335: EXPLAINATION

The general principle adopted as regards government service is merit, but .in case of the
Scheduled Castes and the Scheduled Tribes, some relaxation is needed' because of their
backwardness article 335, therefore, provides that the claims of the members of the
Scheduled Castes and the Scheduled Tribes are to be taken into consideration,
consistently with the maintenance of efficiency of administration, in making
appointments to services and posts in connection with the affairs of the Union or of a
State. This provision thus imposes a constitutional obligation on the various
governments to take steps to ensure that the claims of members of the Scheduled Castes
and Scheduled Tribes are duly considered in making appointments to government
services.

The Hon’ble Supreme Court has held in a number of cases, that Article 335 operates as a
limitation to the provision contained in Article 16(4) though Article 16(4) does not
specifically refer to Article 335 or raise any question of maintenance of efficiency of the
administration. Thus, reservation for the backward class will be struck down as
violative of Article 14 and 16(1), if it is unreasonably excessive. In this connection,
reference may be made to the discussion under Article 16(1) and 16(4). Article 16(4) is
an enabling provision conferring power on the State to make reservation of posts in
favour of any backward class of citizens who, in the opinion of the State Government,
are not adequately represented in the State services. Article 335 runs as follows:

Claims of Scheduled Castes and Scheduled Tribes to services and posts The claims of
the members of the Scheduled Castes and the Scheduled Tribes shall be taken into
consideration, consistently with the maintenance of efficiency of administration, in the
making of appointments to services and posts in connection with the affairs of the Union
or of a State.14

14
INDIA CONST. art 335.
Article 335 insist on drawing a balance between reservation of posts for the Schedule
Caste and Schedule Tribes in government post and maintenance of efficiency in the
administration. Article 335 makes efficiency in administration an express constitutional
limitation upon the discretion vested in the state while making the provisions for
adequate representation for Schedule Caste and Schedule Tribe. 15

As the Supreme Court has stated in Indra Sawhney, the provisions of the Constitution
must be interpreted in such a manner that a sense of competition is cultivated among all
service personnel, including the reserved category.

The Supreme Court has observed in this connection:

"Art. 335 stipulates that the claims of the members of the Scheduled Castes and
Scheduled Tribes shall be taken into consideration, consistent with the maintenance of
efficiency of ad-ministration, in the making of appointment to services and posts in
connection with the affairs of the Union or of the State. It is thus, apparent that even in
the matter of reservation in favour of Scheduled Castes and Scheduled Tribes the
founding fathers of the Constitution did make a provision relating to the maintenance of
efficiency of administration. In this view of the matter if any statutory provision
provides for recruitment of a candidate without bearing in mind the maintenance of
efficiency of administration such a provision cannot be sustained, being against the
constitutional mandate". 16

4. RELATIONSHIP BETWEEN ARTICLE 16(4) AND 335

There has been some verbal confrontation concerning whether Art.335 had any
restricting impact on the power of reservation presented by Art. 16(4). The nine judge
bench of the Supreme Court in Indra Sawhney considered the contention that the
mandate of Art.335 suggested that reservation ought to be perused subject to the
capability engrafted in Art.335 i.e. reliably with the support of effectiveness of
administration. Managing the contention majority confined an issue in the matter of
whether reservations were hostile to meritarian. The majority watched that might be

15
Ajit Singh II v State of Punjab, AIR 1999 SC 3471.
16
Ashutosh Gupta v State of Rajasthan, (2002) 4 SCC 34, 40.
proficiency, capability and legitimacy are not synonymous ideas; might be it isn't right
to regard justify as synonymous with productivity in organization and that legitimacy is
yet a segment of the efficiency of an administration.
Indeed, even so the importance and noteworthiness of legitimacy at the phase of starting
enrollment can't be overlooked. It can't likewise be overlooked that the general concept
of reservation suggests choice of a less commendable individual. In the meantime, it is
perceived that this much cost must be paid, if the constitutional guarantee of social
justice is to be reclaimed. It is likewise solidly trusting that given an open door,
individuals from these classes will undoubtedly conquer their underlying drawbacks and
would contend with and may sometimes, exceed expectations individuals from open
contender hopefuls. It is obvious that nature has endowed merits upon the members of
backward classes as much as it has heaps of different classes and what is required is a
chance to demonstrate it.
But in case of Article 16, Article 355 would be relevant. It may be permissible for the
government to prescribe a reasonably lower standard for scheduled castes/Scheduled
tribes/backward classes consistent with the requirements of efficiency of administration.
It would not be permissible not to prescribe any such minimum standard at all. While
prescribing the lower minimum standard for reserved category, the nature and duties
attached to the post and the interest of the general public should also be kept in mind.
While on Article 355, we are of the opinion that there are certain services and positions
where merit alone counts. In such situations, it may not be advisable to provide for
reservations. For example technical post in Research and Development
organisations/departments/institutions, super specialities in medicine, engineering etc.

5. ARTICLE 16(4) AND HOHFELDIAN CONCEPT OF RIGHT

Wesley Newcomb Hohfeld, an American Jurist, additionally gave his view on rights.
"Right" which we use in our general speech or in our everyday life, not in any case we
yet in addition our Judges and in our lawful framework varies a great deal from
Hohfeld's idea of Right. Hohfeld's investigation of rights lies in the expressive exercise
of the lawful positions which are associated with each other by methods for coherent
relations of entailment and nullification. Hohfeld's desire was to give an applied
comprehension to our utilization of right, obligation and so forth practically speaking, in
this way encouraging a superior comprehension of the idea of our rights. Consequently,
in the Hohfeldian investigation the term 'right' includes four 'entirely basic lawful
relations'- 'right (or claim)', 'priviledge', 'power' and 'immunity'. He recognized eight
"crucial" ideas that enable one to portray any legitimate position. These ideas are
obligation, assert, freedom, no claim, control, risk, disability, and invulnerability.
Hohfeld clarified how these ideas legitimately identified with each other through what
he called "correlation" and "opposition. 17

As Article 16(4) falls inside the domain of Part III of the Constitution, it is called as a
crucial right of the subject. The early introduction which comes into our psyche, when
we say that Article 16(4) is a Fundamental Right, is that, in Hohfeldian Concepts it must
be a claim right. But a bare reading of the Provision reflects in our mind that the Right
which is given under Article 16(4) is actually a privilege which is conferred into the
hands of the State. Additionally, on the off chance that we dissect the decision of the
Court in the case of P&T Schedule Caste/Tribe Employee's Association v. Union of
India18, in which the Court has watched that Article 16(4) is just an empowering
condition and no writs can be issued conventionally convincing the administration to
reserve spot, we are evident that Article 16(4) isn't a Claim right. As we realize that, the
Jural correlative of Claim Right is Duty, if the backward classes would have a Claim
right, at that point the State would have under a Duty to give reservation. In any case,
the choice of the Court in the previously mentioned case, unmistakably says that, the
State is under no obligation to give reservation on the desire of the Backward classes.
Hence, as there is no correlative obligation with respect to the State, it is very evident
that, Article 16(4) isn't a claim ideal for the backward classes of the general public.
Hohfeld portrayed Privilege or Liiberty as, to have a Liberty to participate in a specific
activity is to be free from any obligation to shun the activity, similarly, to have a Liberty
to swear off a specific activity is to be free from any obligation to embrace the activity.
Like any right, every Liberty is held by a particular individual or gathering of people
against another particular individual or gathering of people. The individual against

17
SIEGFRED VAN DUFFEL, THE NATURE OF RIGHTS.
18
P&T Schedule Caste/Tribe Employee's Association v Union of India (1988) 4 SCC 147, 151.
 whom the Liberty is held has a no-right concerning the activity or state of affair to which
the freedom pertains.19
Under Hohfeldian idea of rights, Power indicates capacity in a man to modify the current
lawful condition, regardless of whether of oneself or of another, for better or in negative
ways. The correlative of power is liability which signifies the position of a man whose
legitimate condition can be so changed. Taking a gander at the instance of the Indra
Sawney case we will see that a great deal of contention will emerge between the two. On
the off chance that the State has control under proviso (4) of Article 16 of the
Constitution, at that point in Hohfeldian sense it will imply that the State is vested with
all the energy of adjusting the current legitimate condition. Interestingly it implies that,
the group, i.e. the legitimate state of the backward class is effectively vulnerable.
Additionally, it has been said that power itself doesn't have any correlative obligation
connected to it. This likewise implies the State is under no obligation to act, which is to
give reservation to the backward classes.
If this is the power which the Constitution gives to the State under Article 16(4), at that
point there will be an incredible clash. The fundamental clash which will emerge is that,
regardless of whether we ought to pass by the understanding which was made by the
Court while characterizing the Scope of the arrangement or we need to pass by the
arrangement itself which is given under part III of the Constitution.

6. ARTICLE 16(4) AND THE THEORY OF JUSTICE

The Theory of Justice as propounded by John Rawls in his book ‘A Theory of Justice’
(1971) presented a conception of justice which generalised as to what is justice and tied
to carry it to higher level of abstraction rather than in defining in concrete form.
According to John Rawls, there are some principles of justice which are running as an
undercurrent in the building of a society which is well organised and working in a
particular fashion. These are such principles which would be adopted by ‘free and
rational’ persons to further their own interest in an initial position of equality. This is
‘the equality’ which is fundamental to their association. And it is this principle which
regulates their further agreements. By agreements here, he meant the laws which will be

MATTHEW H KRAMER, N.E. SIMMONDS & HILLEL STEINER, A DEBATE OVER RIGHTS 10 (Oxford
19

University Press, 2003).

passed at later stages will be working on this very principle. So this is what he regarded
as ‘justice as fairness’.
According to Rawls, the two principles of justice which would be agreed to by rational
and mutually disinterested individuals in the ‘original position’ of equality are that:
First: each person is to have an equal right to the most extensive basic liberty compatible
with a similar liberty for others. The basic liberties of citizens are: The political liberty
to vote and run for office, Freedom of speech and assembly, Liberty of conscience,
freedom of personal property and Freedom from arbitrary arrest.
However, because various basic liberties may conflict, it may be necessary to trade them
off against each other for the sake of obtaining the largest possible system of rights.
There is thus some uncertainty as to exactly what is mandated by the principle, and it is
possible that a plurality of sets of liberties satisfy its requirements.
Second: Social and economic inequalities are to be arranged so that:
(a) they are to be of the greatest benefit to the least-advantaged members of society (the
difference principle).
(b) offices and positions must be open to everyone under conditions of fair equality of
opportunity.
Thus, for justice to be attained the principle of fair equality of opportunity must be
satisfied before the difference principle is satisfied.
The Indian Constitution was framed much before the happening to the book 'The Theory
of Justice' however it appears as though there is some co-connection between the two.
Truth be told, the extremely two standards of justice as favored by Rawls appear to
totally fit in the Indian Constitution. It might be that Rawls got affected by the Indian
Constitution yet the path in which different Fundamental Rights have been deciphered
by the Supreme Court of India in the last stages appears to mirror the thoughts of Rawls.
Understanding of Art 14, 15, 16 and 21 demonstrates the impact of Rawlsian approach.
The scope and extent of Article 16(4) has been examined thoroughly by the Supreme
Court in the historic case of Indira Sawhney v. Union of India, popularly known as the
Mandal Case.
The facts of the case were as follows: On January 1, 1979 the Government headed by the
Prime Minister Sri Morarji Desai appointed the 2nd Backward Class Commission under
Article 340 of the constitution under the chairmanship of Shri B.P. Mandal to investigate
the socially and educationally backward classes within the territory of India and
recommend steps to be taken for their advancement including desirability for making
provisions for reservation of seats for them in Government jobs. The commission
submitted its report in December 1980. It had identified as many as 3743 castes as
socially and educationally backward classes and recommended for reservation of 27%
Government jobs for them.
The second principle of justice as recommended by John Rawls is clearly reflected in the
Mandal case where social and economic inequalities are to be arranged so that:
(a) they are to be of the greatest benefit to the least-advantaged members of society (the
difference principle).
(b) offices and positions must be open to everyone under conditions of fair equality of
opportunity.
Reservations in the jobs and educational institutions clearly show a reflection of
Rawlsian approach. It is a true fact that all persons do not have same social and
economic background. Some may have been least advantaged members of the society. In
the Mandal case the reservations tend to give benefit to the least advantaged members of
the society.
Another important pointed which is to be noted is that the offices and positions should
be open to everyone under conditions of “fair equality of opportunity.” Therefore,
offices and positions must to open to all only when there is fair equality among those
who are competing. Not all members are equally placed by nature. Some are fortunate
enough to be born in highly educated background. So the question arises as to whether it
is fair to treat them equally and evaluate them with the same stick, of course, not. People
who are not equally placed should not be treated in the same manner. Lastly it can be
concluded that the Theory of Justice as propounded by John Rawls has shown the mirror
of as what exactly is the concept of justice. Though it is difficult to define justice in clear
terms but Rawls has more or less has been successful in defining justice.
7. DRAWBACKS
a) Merit vs. Social justice

The most widely recognized feedback raised against the strategy of reservations is that it
is at the cost of meritocracy and that it advances average quality which a creating society
like India would ill be able to manage. While evidently and hypothetically the
contention appears to be very much established there is neither confirmation to help the
dread nor is it consistent with say that meritocracy would be the standard once
reservation is lifted. A wide range of undocumented reservations work in India through
family relationship associations, caste connections and professional connections.

b) Inherent Contradiction

The more basic inquiry, be that as it may, is the manner by which far the quotas have
and other priviledges helped the Target Groups. As we have seen over the improvement
in such manner has, best case scenario been minor. Whatever advance has been enrolled
by the Depressed Classes it is pretty much proportionate to the general advance
accomplished by the country. As Target Groups they ought to have demonstrated a
noticeably better record, yet this has not happened. In a nation like India where
neediness, absence of education and hardship are so broad, it is a sketchy suggestion to
think as far as upliftment for specific social gatherings, that too by underlining
reservations alone. A report on account of the condition of essential training in India
brought out by the India Today depicts a discouraging photo of the Indian state's
disappointment in such manner. The issue in that capacity is considerably bigger and
minor targetting specific segments of society would not do. It is derived that since
reservations are the minimum costly and politically most compensating the political
gatherings discover them the least demanding approach alternatives accessible to them.

c) Persistence of Caste Prejudice

One other issue which should be talked about here is whether there can ever be any
genuine change in the part of the underprivileged sections of the society, regardless of
whether they belong to the SC/STs or the OBCs, without assaulting the position
framework itself, this being the embodiment of the level headed discussion amongst
Gandhi and Ambedkar. Can the disposal of the shame experienced by the under-special
be accomplished through the charity and effortlessness of the upper standing Hindus or
has it to be earned or wrested by the under-priviledged themselves through their battles,
even fierce battles. In the event that viciousness is inborn in the conditions would it not
sustain the station cleavages at the cost of social agreement. In any occasion it has been
seen that the quota framework has disposed of whatever goodwill the upper standings
had for the lower castes.

d) A Spectre of Two Indias

In the present setting the most basic inquiry is whether two Indias are being made by
two oppositely inverse socio-political powers the interest for modernisation from one
perspective supported by the opening up Affirmative Action in India 163 of the
economy and its joining into the techno-intensive worldwide economy - and on the
other, the interest for social equity undermining the center of that theory. One requires
the withdrawal of the state and the other assigns to the state the role of the greatest
dispenser of equity. Against this foundation it would be progressively troublesome for
the state to execute its arrangement of reservations particularly where the OBCs are
concerned. From one viewpoint the number of government employments is shrinking
while on the other pressure for more occupations is mounting.

There is yet another related issue. More prominent progression of the economy implies
more modernization of exchange and industry. The conventional occupations of the
regressive classes, for example, cleaning, haircutting, angling and tanning are under
danger of being controlled by the upper castes especially in the urban regions. With the
developing utilization of innovation in these exchanges they are never again looked
downward on as occupations. Thusly, the backward clsses can't depend any more upon
the state; they would need to react to the market also.
8. CONCLUSION
Indian reservation framework has been a noteworthy achievement in enhancing the
position of the Backward Classes and past decades have indicated striking improvement
in position of Backward and Oppressed Classes in India. In spite of the fact that our
reservation framework is a result of immense measure of research by commissions and
Government organizations like Mandal Commission and so on yet and still, at the end of
the day some place our framework is missing on the materialness part additionally a few
shortcomings are there in ID of the Backward Classes in light of the fact that in spite of
giving such a significant number of years of reservation their position have not been
produced to that degree as it ought to have been. Our present reservation framework is
station based and it has been seen that the upper fragment of each class who are forward
then the others are creating and are utilizing most extreme advantage of reservation and
furthermore now they have accomplished both the monetary equity and also social
fairness since they are financially solid now while the lower portion of a similar cast are
as yet unconscious of their privileges of reservation and they are still in reverse. With a
specific end goal to liken this disparity which is there in a similar station, the reservation
approach ought to be founded on the financial condition premise so every last individual
of this nation who is in reverse socially and in addition monetarily will get equivalent
opportunity to create. Numerous stations are currently monetarily forward yet at the
same time they socially in reverse. We require some new techniques other than rank
based reservations with a specific end goal to limit this hole and to expand them
socially.