Horizontal Reservations, Merit List and the Supreme Court

[Editor’s Note: The Supreme Court’s approach on merit and efficiency of administration in the cases of the reservation is not a correct approach conceptually and philosophically, and such an approach leads to deflection from the values of the constitution and compromise the struggle for constitutional justice. This approach is based on the view that reservations and merit are opposed to each, instead, there is a need to balance the two.]

The decision of the Apex Court’s full-bench in Saurav Yadav v. State of UP (2020) discusses the horizontal and vertical reservations. In this post, the author will be discussing the judgment of the court, which in his opinion is correct, and vertical and horizontal reservations.

The facts of the case are: the State Government kept criteria that if a male candidate belonging to SC/ST/OBC Category secures higher marks than the general/unreserved cut-off list, then he would be selected as under the unreserved category and it will not affect the reserved quotas. But the same yardstick does not apply to the female candidates appearing for the same exam as female candidates have their horizontal quotas in their respective categories. Hence, the aggrieved parties approached the Court to enforce their rights. The issue which arose, in this case, is whether the OBC category applicant who secured more marks than the general category female candidate must be selected as under unreserved-female candidate or not. To answer this issue, let us try to understand the concepts of Vertical and Horizontal Reservations.

Vertical and Horizontal Reservations

Justice Reddy in the case of Indira Sawhney v. Union of India (812) explained the concept of vertical and horizontal reservation as:

“The reservations in favour of SC/ST/OBC [under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped [under clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations— what is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to SC category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of a backward class of citizens remains — and should remain— the same.”

The reservations made for physically handicapped, women, etc. is made under Article 16(1) or 15(3)—which are ‘horizontal reservations‘ and the reservations made in the favour of SC/ST/OBCs are under Article 16(4)—which are ‘vertical reservations‘. The candidates belonging to the horizontal category, such as women, physically handicapped are proportionately adjusted in the vertical (social) quotas, either in the general or reserved categories (Swati Gupta v. the State of UP, in 3). The Court further explained, filling up seats, in the case of Anil Kumar Gupta v. the State of UP, that there are two types of horizontal reservation: overall reservation and compartmental reservation. In overall reservation the procedure for filling up the seats is as follows (18): “The proper and correct course is to first fill up the OC quota (50%) based on merit; then fill up each of the social reservation quotas, i.e., SC, ST and BC; the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis. If the quota fixed for horizontal reservations is already satisfied — in case it is an overall horizontal reservation—no further question arises.” But if there is a compartmental reservation, that is, to say the reservation for SC/ST/OBC is 50% and general is 50%. Then, in total female candidates have 30% reservation. That 30% reservation, in the compartmental reservation, is to be reserved proportionately in different categories. For example: out of 100 seats, 15 seats are reserved for SC category, 7 for ST category, 27 for OBC category and 51 for the unreserved category. But now female candidates have 30 seats and they can be from any category, so in a compartmental reservation, a defined number of seats are allocated for women in each category, for instance, 15% of the 30 seats for women (approx. 4 seats) are adjusted within the SC Category. So, after horizontal reservation, under SC Category out of 15 seats, 4 are reserved for SC-Female candidates. If the seats to be reserved for women are 4 in SC category out of 15, then SC-vertical reservation quota will be, first, filled by SC candidates (both women and men), if in those 15 seats, there are already 4 women, then there is no need to apply horizontal reservation for SC category, but if there are not 4 women candidates based on merit, then male candidates (last in the list) need to be removed to fulfil 4 women seats (R.K. Daria v. Rajasthan Public Service Commission, 10). But the question herein arises that whether the meritorious candidates from reserved categories be allowed to compete in the open category? If yes, then what about those meritorious candidates who are reserved vertically as well as horizontally?

Can horizontally and vertically reserved candidates compete in the open-horizontally reserved category?

The Supreme Court in the case of R.K. Daria explained the nature of vertical reservation as (9):

Where a vertical reservation is made in favour of a Backward Class under Article 16(4), the candidates belonging to such Backward Class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their number will not be counted against the quota reserved for respective Backward Class.

It is not like communal reservations where a candidate of a particular community will compete for a particular reserved seat only, the candidates from SC/ST/OBC, if they choose to compete in the open category, then their selection will not affect the existing reserved seats under SC/ST/OBC categories (Indira Sawhney, 735). Nonetheless, will this principle apply to horizontal categories as well. Now, the author will analyse the precedents related to horizontal reservation and merit lists.

In the case of Megha Shetty v. the State of Rajasthan, the  Rajasthan High Court in 24 clarifies that if a candidate belonging to reserved category (woman) secures higher marks than a candidate belonging to general category (woman), and therefore, finds a place in select merit list meant for general (woman) category, then it is not migration from reserved to unreserved. That woman candidate will be selected under the unreserved category only. This proposition was accepted in another case of Neelam Sharma v. the State of Rajasthan by the High Court of Rajasthan and when that case went to appeal in SLP No. 4312 of 2016, it was rightly dismissed by the Apex Court. A candidate belonging to backward class cannot be restricted from competing under the ‘open category’, irrespective of vertical or horizontal reservation. The open category means ‘open to all’ and it cannot be interpreted otherwise (Bombay High Court in Asha Gholap v. The President, DSC in 32). This will not diminish the seats reserved for SC/ST/OBC in their respective categories (Charushila v. the State of Maharashtra, Bombay High Court)

Application to the Present Case

In the present case, where the applicants (women) are being denied selection in the open categories, unlike male candidates, is discriminatory against them as the same yardstick is not applied to them as applied to male candidates, which is also held to be discriminatory and irrational in the case of Kanchan Vishwanath Jagtap v. Maharashtra Administrative Tribunal (Bombay High Court, 2016) which relied on Indira Sawhney. Even in compartmentalized reservations, the open category is for all, irrespective of their social category. But the vice versa is not true, that means, an open category woman candidate (general) cannot compete on SC/ST/OBC seats reserved for women.

Surprisingly and unfortunately, the Allahabad high court in Ajay Kumar v. the State of UP (2019) has taken a different view from above, stating that: “To our mind, inter-se merit of women has no role to play in the implementation of horizontal reservation as the socially reserved candidate (SC, ST, & OBC) seeking the benefit of reservation of special category (women) cannot claim adjustment in the open category.” This view was also taken by Uttrakhand High Court. This means that at the stage of providing horizontal reservation, the open general category “is to be construed as category meant for candidates other than those coming from any categories reserved vertically, that is, ST/SC/OBC.”

Further, this will lead to unequal treatment of meritorious candidates who are on the same footing. This will create inefficiency and chaos as the less meritorious candidates will be selected, as witnessed in the present case. Further, this view is not supported by any precedents of the Court and hence, it is discarded by the Supreme Court in the Sourav Yadav (present case) as ‘irrational’. Whereas the decisions of the Rajasthan and Bombay High Courts are declared as correct and rational.


In the present case, the applicants are more meritorious than those selected under the open category (woman), but still, the government disregarded their claims and said they can only and only compete under their vertically reserved category (that is, OBC). The Court held that in ¶30,

 “Subject to any permissible reservations i.e. either Social (Vertical) or Special (Horizontal), opportunities to public employment and selection of candidates must purely be based on merit. Any selection which results in candidates getting selected against Open/General category with less merit than the other available candidates [in reserved categories—SC/ST/OBC] will certainly be opposed to principles of equality.

By applying the principles enunciated in the case of Megha Shetty, Charushila and Indira Sawhney, the apex court in this case (Saurav Yadav) held that denial of the claims of the applicant is unconstitutional and they must be selected under the open category as they have secured more marks than the cut off list prepared for the open category. Furthermore, the correct procedure for selecting candidates, in future as per the Supreme Court, in the final merit list (consisting of open/SC/ST/OBC) is best illustrated by the 2019 Gujarat High Court in the case of Tamannben Ashokbhai Desai v. Shital Amrutlal Nishar as it deals with every possible situation that could arise in the future about the allocation of seats to horizontally and vertically reserved-meritorious candidates (this procedure will be dealt by the author in the coming posts). Therefore, this full-bench judgment of the Supreme Court in Saurav Yadav clarifies the position of selecting candidates who are reserved horizontally and in my opinion is correct.

[The author would like to thank Aatika Singh for her comments.]

Case Study on State Assemblies of North East India: Need for Reservations for Women

[Editorial Note: Constitutional Renaissance’s Research on State assemblies of North East can be accessed here]

In this article, we conducted a research on the incumbent Members of Legislative Assembly (‘MLAs’) in eight states of North East (Assam, Tripura, Manipur, Mizoram, Arunachal Pradesh, Sikkim, Meghalaya and Nagaland) as a sample data to analyse the number of women MLA in these regions, their family backgrounds, political parties and their income, whether they are from a relatively poor or rich background (click here to see our summarised research). This research tries to answer the question “whether women are proportionally represented in the State Assemblies according to their population in the state.” As the Tribune reports, ‘the Perception of Electoral Integrity Index gave India 40/100, under the Varieties of Democracy’s Female Rights Index, with India performing its lowest in political power. In the EIU’s Democracy Index (2019), India suffered a downfall in political participation from 7.22 to 6.67.’ Currently, in-state assembly elections, there is no proportional reservation for women, unlike in the third tier of government (Panchayats) where we have 33% reservation for women. Through this research, we will be proposing that there is a requirement for proportional reservation for women in the state assemblies and in Parliament to avoid ‘political lockout’ and to keep our democracy legitimate.

Liberal Constitution and ‘political lockout’

In liberal constitutions, like that of India, the state has an indispensable duty to protect the rights of the citizens and to ensure that the freedoms and civil liberties are not compromised at any cost. Although the denial of these civil liberties presents many stability problems for democracy. But ‘political lockout’ of a section of society out of power raises concerns with regard to the whole legitimacy of the democracy. That section of society could be Scheduled Castes, Scheduled Tribes, Other Backward Classes or women as well. In the words of Tarunabh Khaitan, political lockout means ‘when a group comprehensively loses any genuine prospects of garnering even a threshold level of political power at least some of the time, it has been ‘locked out’ of power’. We have always thought of political representation debate with regard to caste and religion. But keeping a whole group, which is women, out of politics may also repose serious threat to the legitimacy of the liberal order established by the Constitution. For instance, if a particular group is kept out of power for long and they are refused to participate in decisions which affect their lives, then that group will lose faith in the democracy as their interests are not fulfilled either represented in the law-making body. We have seen in the past when committees are formed for a particular purpose but they keep out a section of a society which are the most affected section, then it raises alarming concerns about that committee, to an extend delegitimizing it (for instance, see this). Through our research, we have found that women in north-east have been kept out of power for some time and they have been denied equal participation in the law-making process. In the northeast alone, out of 498 seats (MLAs) spread over eight different states, there are only 24 elected women representatives.

The research displays a lot of flustering concerns: about the legitimacy of democracy. Scholar Choudhary argues in his book that

‘the ambition of liberal constitutionalism is that a constitutional order must both be legitimate and must enjoy the allegiance of a sufficient number of its citizens.’

If a group, be it, women, any caste, any class, is kept out of power for some time then ‘that has the capacity to destabilise the constitutional settlement’. Through our research, we saw that the women who are in politics, and who become MLAs, are relatively richer to those women who do not get into politics. The data shows that all of the women MLAs who get elected are relatively richer with assets ranging from Rs. 1,49,77,798 (of a member from Tripura) to Rs. 1,86,28,851 (of a member from Assam). The plight of a woman who is not relatively rich and is not represented in the law-making process is so much that it might make the state assemblies illegitimate and no longer liberal as it does not represent democracy, rather a ‘plutocracy’. Plutocracy is a society that is ruled or controlled by people of great wealth or income. A majority group, who is relatively poor, is kept out of power.

Research shows us that there are no single women in all the states who are ‘relatively poor’ as compared to others. The MLA with the lowest income among all of them is from Tripura (CPI(M) party) who has assets worth Rs. 7,05,142 (But we never know if this has increased after getting elected as an MLA). If a set of group, which has a defining characteristic that is relatively poor and not-men, is kept out of political power (even the minimum share of power), then ‘the guarantee of fair political opportunity has been compromised’ (see Tarun Khaitan’s research). If need to make a democracy legitimate of authority beyond the formal declaration of ‘free and fair elections’, we must address the issues of ‘political lockout’, under-representation and every group must get a chance to represent itself in the position of power.

As Geetika Dang, Research analyst from Brookings India put it ‘while Mizoram has never elected a female member Parliament [as also shown through our research even in the case of state assemblies], perhaps the starkest example of the lack of female representation comes from Nagaland that has failed to elect a single female MLA in 55 years of statehood. Rano Shaiza, a member of United Democratic Party, was the first and only woman in this state who was elected to Lok Sabha in 1977.’ Our research shows that currently in Mizoram and Nagaland there are no women MLAs in an area where the population of women is 5.41 lakhs and 9.53 lakhs respectively. There is no state in North East India which does not regularly make laws for women but the voices of the women are not heard in the halls of the legislature as there is no one to represent them. Further, the data from Manipur raises more alarming concerns as for 14.17 lakhs women, there is only one MLA.

We also found something interesting that out of these total 24 elected MLAs in the North East region, only 4 of them have some kind of political background. Rest of them did not have any sort of political background, neither their husbands nor their parents are in politics. This shows a positive trend that women are becoming independent and without any political support, they are standing up and coming into a profession which is termed as ‘dirty’ in common parlance (but we are not sure about their political connection through other connections).

Although, it is true that every woman in North-East have a right to vote guaranteed by the Constitution, but just formal declaration of equality cannot justify the inequality faced by women in the law-making process (or even in their share of political power). Hence, there is a need for a minimum reservation of seats for women in the legislative assemblies.

 Answering the ‘inequality’ in Representation: A ‘Localised’ Solution?

One of the methods to ensure women representation in North-East region is by making sure all the women come together to support other women, basically lobby the support. This needs to be done through the Gandhian methods of localising the issues and answering them through a bottoms-up approach. As Simi Malhotra, Director of the Centre for North East Studies and Policy Research, Jamia Millia Islamia, said in a Development Seminar in 2019 that, “the paternalistic baggage of ethnicity, and hence the ethnic divide within the northeastern states, has been an impediment in this direction.  At the grassroots level, the women’s movement in the northeast and associated synergies and outlets of solidarity have to be explored.” But this casts another issue which is inevitable that only those women who are relatively richer will be able to organise women and get the support like how we see in national politics. Even the first generation politicians have strong economical backing. We hardly see any MP or MLA from a relatively poor background. As we have seen through our research that most of the women who are elected as MLAs are from an economically richer section of society.

Further, this, bottoms-up approach, is not an absolute guarantee that women will be represented in the assembly because keeping women out of politics is not just a problem of political parties who do not give chance to women, but also a constitutional and a social problem. The preamble uses the words ‘We the People’ gives ourselves this constitution, but if the ‘supreme document’ cannot guarantee a group minimum power in the political machinery, then the faith of that group would be shaken and hence, the problems need constitutional insurance/reservations.

‘Political Assurance’: Proportionate Reservation

Political empowerment of women is a necessity in eliminating gender inequality and discrimination. Political power is a (sort) of guarantee to the women which will ensure that the elected regime remains legitimate addressing all the issues related to women. If we look at the historical account of the efforts made to reserve seats for women in Lok Sabha and State Assemblies, we can trace a ‘background note’ by the Law Ministry which shows that efforts made to reserve seats for women in State Assemblies and House of People always failed due to lack of political consensus.

Again in 2008, Rajya Sabha’s Department related to Parliamentary Standing Committee on Personnel, public grievances, law and justice presented its 36th Report on The Constitution (One Hundred and Eighth Amendment) Bill, 2008 in which the committee recommended for proportionate reservation for women in Lok Sabha and State Assemblies. Further AIDMK member orally stated before the committee on the need for reservation for women.

Reservation for women is not a bounty but it is an honest recognition of their contribution to social development and to the society at large.

We have seen the justices of the High Court in the past few years (as well) making “misogynistic observations” in cases involving penal sections like Rape, Assault etc. It shows the mindset of the society towards the women that is horrific and has no place in the 21st century and it enhances the need for a political assurance as ‘there is no logic in saying that women are deficient in physical, mental and intellectual capabilities. Still, they have been forced to be earmarked as the weaker sections of the society. In fact, by keeping 50 per cent of the society weaker we have made the whole society weak. In such a situation, some compulsory legislative measures need to be taken for proportionate representation of the women in the State Assemblies and the Lok Sabha as well.’

The arguments against the reservation of women state that women empowerment cannot be done through such measures, instead, we need a societal change where everyone changes from within. But such ‘Gandhian’ bottom’s up approach fails in the long run as the people do not have an incentive to change their attitude and behaviour towards the other gender. Rather, constitutional insurances which guarantee formal equality accelerates the ‘process of change’ in the society as seen in the case and experiment of Reservation of 33% for women in Panchayati Raj. The Committee which recommended the reservation for women also observed that ‘the data shows that through 1/3rd reservation of seats for women in Panchayats and Nagarpalikas, they have been able to make meaningful contributions and that the actual representation of women in Panchayati Raj institutions has gone up to 42.3% i.e., beyond the reservation percentage.’

Impossibility of Reservation in Rajya Sabha: ‘Article 80 of the Constitution specifies that members of state assemblies will elect Rajya Sabha MPs through a single transferable vote.  This implies that the votes are first allocated to the most preferred candidate, and then to the next preferred candidate, and so on.  This system cannot accommodate the principle of reserving a certain number of seats for a particular group.  Currently, Rajya Sabha does not have a reservation for SCs and STs. Therefore, any system that provides reservation in Rajya Sabha implies that the Constitution must be amended to jettison the Single Transferable Vote system.’

Anyhow, leaving the Rajya Sabha aside, the Preamble of the Indian Constitution states and guarantees that every citizen must be secured of ‘equality of status and opportunity’. These commitments in the Preamble must be the objective of the legislature which they must seek to achieve while enacting an amendment for reservation of women. The data shows that the women are not represented equally in the Assemblies and there is a need for change, or else questions against the legitimacy of the democracy will strengthen. Equality for women is not just a game of mockery and gimmickry for ‘International women’s day’, but it is a continuous effort to eradicate various social, economic and political gaps between the genders.

This is a research conducted by Chaitanya Singh, Founder and Editor of Constitutional Renaissance Blog. The author would like to thank Ms Raksha Tripathy, Ms Sulagna Sarkar and Mr Yuvraj Ranolia for assisting in data analysis and research.