After numerous decades, the order given by the Supreme Court of India, “reservation is not a fundamental right” has sparked an ardent political debate and unrest among backward communities. In this article, the author shall explain what was the view of the Supreme Court in earlier judgments regarding the reservation. Accordingly, the author shall explain if the right to the claim reservation is not a fundamental right, then what is the status of reservation.
On 11th June 2020, in the case of All India Anna Dravida Munnetra & Ors. vs Union Of India, the political parties of Tamil Nadu challenged the policy of Central Government according to which the Central Government has decided to not give the reservation to the Other Backward Classes (OBC). A petition was filed under article 32 of the Indian Constitution under the argument that the fundamental rights of OBC candidates are violated. However, the Supreme Court of India held that the reservation is not a fundamental right and hence this petition cannot be filed under article 32 as article 32 is available only for violation of a fundamental right. Therefore, a three-judge bench led by justice L.N. Rao ordered the petitioners to withdraw their petitions.
In February 2020 as well, the Supreme Court of India observed the same in the case of Mukesh Kumar and Anr. vs. The State of Uttarakhand and Ors. In this case, the argument of reserved category candidates was given under the decision of M. Nagraj vs. UOI (2006) that the government of Uttarakhand has not given reservation to Scheduled Castes and Scheduled Tribes whereas the State is bound to give reservation according to the report submitted in M. Nagraj Case which said about unsatisfactory of SCs and STs in government jobs that time. In this case, the honorable Supreme Court of India put on the decision given in the case of Ajit Singh vs. the State of Punjab (1999) where it was made clear that under Article 16(4) and Article 16(4-A), does not give any fundamental right in reservation in promotion. In Ajit Singh’s case, where the case of C.A. Rajendran vs. UOI (1968) was also discussed and here it was said that the State government would not be ordered for giving reservation by the courts. Even in the case of M.R. Balaji vs. State of Mysore (1963), Article 16(4) and Article 16(4-A) were supposed as enabling provisions. After relying upon previous verdicts of this Court of law, the Supreme Court held in the case of Ajit Singh that article 16(4) and 16(4-A) are in the nature of enabling provisions, conferring a discretion on the State Government to contemplate providing reservations, if instances so warrant. It is established law that the state government could not be dictated for the nomination in public posts.
Hence, by the case of Mukesh Kumar, the Supreme Court made it clear that the government can ignore the report of any committee, however, if the State government want to give reservation to any class then the government will have to collect quantifiable data for the meagerness of the portrayal of that class in public services. If the pronouncement of State Government to provide reservations to promotion is confronted, the State concerned shall have to place before the Court, the vital computable facts and mollify the court that such reservations became obligatory on account of the scantiness of representation of SCs and STs in a specific class or classes of posts without distressing the general efficacy of administration as delegated by the article 335 of the Indian Constitution.
Court also emphasizes on the verse of article 16(4) and 16(4-A) and said these articles sanction the state to make a reservation in matters of selection and promotion in favor of SCs and STs “if in the view of the state they are ineffectively epitomized in the services of the State.” It is for the State Government to resolve whether reservations are required in the matter of selection and promotions to public posts. The language of Article 16(4) and 16(4-A) is clear and according to which, the inadequacy of representation is a matter within personal approval. In the case of Mukesh Kumar, the court also said that no one has the fundamental right to claim the reservation and for being it enforced the court cannot issue a writ of mandamus.
In the case of Common Cause vs. Union of India (2003), the honorable Supreme Court of India held that for exercising discretionary power, a writ of mandamus cannot be issued.
It is also questioned that if the State is not giving reservation the state must express there is a satisfactory representation or not. The court said that not being certain to provide reservations, the state is not mandated to rationalize its pronouncement based on quantifiable data, showing that there is a satisfactory representation of members of SCs and STs in State services.
In the case of Suresh Chand Gautam (2016) the court made it clear and held that no mandamus can be dispensed by the court to the state to accumulate quantifiable data concerning to an adequacy of representation of SCs and STs in public services.
There are several reasons people argue reservation is a fundamental right. Two of them are:
- Those people say reservation is a fundamental right they rely on two cases’ judgments, the first one is Jagdish Lal VS. the State of Haryana and 2nd one is Ashok Kumar Gupta vs. State of U.P. In these cases, it was observed that reservation is a fundamental right.
- Some people believed that article 16(4) comes under part III (articles 12-35) of the Indian Constitution, which itself deals with fundamental rights, then why reservation does not come under the fundamental right.
By taking these two arguments only, in the case of Ajit Singh article 16(4) and Article 16(4-A) were discussed and was said that these two articles open with a non-obstante clause. There is a noticeable variance in the language employed in Article 16(1) on the one hand and Article 16(4) and Article 16(4-A). There is no order or command in Article 16(4) or Article 16(4-A) as in Article 16(1). Hence, both Article 16(4) and 16(4-A) are only empowering provisions. It means that if in article 16(4) and 16(4-A), it is written that “notwithstanding anything in this article, State shall provide reservation” then only reservation can be regarded as a fundamental right.
In the case of Ajit Singh, inappropriately, all the verdicts of larger benches were not fetched to the notice of the bench which decided Ashok Kumar Gupta and Jagdish Lal and to the benches which followed these two cases. Because of the devastating authority right from 1963, we hold that both Articles 16(4) and 16(4-A) do not deliberate fundamental rights nor do they execute any constitutional duty to the State. Thus, the court said that Jagdish Lal and Ashok Kumar Gupta cases are per encuriam i.e. do not lay down the regulation appropriately.
It has made clear from the above cases that the right to claim reservation is not a fundamental right. However, this can be said as a statutory or legal right because, for supporting the provisions of reservations any law, rule or act can be used.
Shailee Mishra is a second-year student (BA LLB Honors) at the University of Allahabad, Uttar Pradesh, India.
Suggested citation: Shailee Mishra, Recent Approach of the Supreme Court of India on Reservation, JURIST – Student Commentary, July 21, 2020, https://www.jurist.org/commentary/2020/07/shailee-mishra-india-reservation/.
This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at commentary@jurist.org.
