CONSTITUTIONALITY OF CASTE BASED RESERVATIONS: UNCOVERING LOOPHOLES AND INCONSISTENCIES

Abstract

This paper explores the loopholes and gaps present in the current reservation policy adopted in India. It identifies four main areas of concern. First, it explores whether Article 341 or a notification issued thereunder is subject to Article 14 of the Constitution of India. Answering this question in the affirmative, it notes that the absence of any specific identifiable parameter for the designation of Scheduled Castes makes the application of Article 14 to the list of Scheduled Castes merely theoretical. Second, in the absence of any specified parameter, the paper draws on the observations of the Supreme Court in the Indra Sawhney case to trace the distinction between the classification of Scheduled Castes and the Other Backward Classes and concludes that there is considerable overlapping between their criteria, and the distinction, if any, is the fact of designation itself. Third, it makes a point that the executive designation of a socially backward caste as an Other Backward Class, thereby entitling it to get the benefit of reservation under Article 16(4) of the Constitution, could constitute a colourable exercise of power in lieu of the fact that Article 341(2) prohibits such designation for a socially backward caste explicitly. Fourth, the paper argues that the test of reservation under Article 16(4) is not the backwardness of a given class, but whether such class is inadequately represented in the services, a condition which is largely ignored. The paper concludes by making suggestions to address the above concerns and rectify the lacunae present in the present system of reservations.