Some say that reservation is a part of affirmative action whereas others say that it is not.. The proviso to Article 13(3) of the Interim Constitution gives state "special powers" for affirmative action. However, there is no mention of the word 'reservation' in this proviso or the rest of Article 13 guaranteeing the right to equality. However, Article 35(10) of the Interim Constitution authorizes reservation as a state policy. It states:
The State shall pursue a policy of uplifting the economically and socially backward indigenous peoples, Madhesi, Dalit, marginalized communities, and workers and farmers living below the poverty line, by making a provision of reservation in education, health, housing, food sovereignty and employment, for a certain period of time.
This provision apparently means that the state is empowered to pursue 'reservation policy' in Nepal in the framework of protective discrimination under Article 13. This provision of Article 35(10) has five important components:
- It is the state which has the responsibility to initiate a policy of reservation.
- The people who could be offered reservations are indigenous peoples, Madhesi, Dalit, and marginalized communities who are economically and socially backward.
- Reservations could also be ensured for workers and farmers living below the poverty line.
- The sectors chosen for reservations are education, health, housing, food sovereignty and employment.
- As a policy, reservation is meant only for a certain period of time. It is not a policy for indefinite period.
Apart from the above state policy, Article 21 of the Interim Constitution has very clearly guaranteed the fundamental right of proportional inclusion. It states:
Article 21. Right to Social Justice: The economically, socially or educationally backward women, Dalits, indigenous peoples, Madhesi communities, oppressed classes, poor farmers and labors shall have the right to take part in the structures of the State on the basis of the principle of 'proportional inclusion.
Although the contours of Article 21 are yet to be interpreted by the Supreme Court, it is clear that it provides further background for reservation policy to enable participation in state structures (civil, military, judicial, educational, etc).
The constitutionality of any reservation policy must therefore be judged on the merit of a given policy. The objective of reservation may be spelt out variously. The aim of any civilized society should be to secure dignity to every individual. There cannot be dignity without equality of status and opportunity. The absence of equal opportunities in any walk of social life is denial of equal status and equal participation in the affairs of the society and, therefore, of its equal membership. The dignity of the individual is denied and direct proportion to his deprivation of the equal access to social means. The democratic foundations are missing when equal opportunity to grow, govern and give one's best to the society is denied to a sizable section of the society. The deprivations of the opportunities may be direct or indirect as when the wherewithal to avail of them are denied. Nevertheless, the consequences are as potent.
As the US Supreme Court has stated in different celebrated cases like Oliver Brown et al v. Board of Education of Topeka et al, the reservation or affirmative action may be undertaken to remove the "persisting or present and continuing effects of past discrimination;" to lift the "limitation on access to equal opportunities," to grant "opportunity for full participation in the 'governance of the society" to recognize the discharge of special obligations towards the disadvantaged and discriminated social groups to overcome substantial chronic under representation of a social group, or to serve the substantial chronic under representation of a social group; or to serve the important governmental objectives.
Reservation in India is the process of setting aside a certain percentage of seats (vacancies) in government institutions for members of backward and under-represented communities (defined primarily by caste and tribe). Reservation is a form of quota-based affirmative action. Reservation is governed by constitutional laws, statutory laws, and local rules and regulations. Scheduled Castes (SC), Scheduled Tribes (ST) and Other Backward Classes (OBC) are the primary beneficiaries of the reservation policies under the Constitution – with the object of ensuring a "level" playing field. It is a well settled principle in India that reservation to backward class is not a constitutional mandate. It is the prerogative of the state if it so desires, with a object of providing opportunity of advancement in the society to certain backward classes which includes the Scheduled Castes to reserve certain seats in educational institution under Article 15(3) and in public services of the state under Article 16(4) of the Indian Constitution.
Apart from the Scheduled Castes and the Scheduled Tribes to whom the special provisions, once notified by the President under Articles 341 and 342, undoubtedly, apply the other "backward classes" of citizens to whom the special provisions can be extended are not merely backward but are socially and educationally so backward as to be compatible to the Scheduled Castes and the Scheduled Tribes. Poverty by itself is not the test of backwardness, for if it were so, most people in this country would be in a position to claim reservation. But the Constitution envisages reservation for those persons who are backward because of identified prior victimization and the consequential poverty.
The reservation system has received a mixed response from Indians since its inception. It has been praised for diminishing the gap between the upper and lower castes by allowing the latter to enjoy the further increased opportunities as the former in jobs, education and governance by allotting seats exclusively for them. It has also been criticized for discouraging a merit-based system and encouraging vote bank politics.