Reservation is not a fundamental right - Declares the Apex Court

In 1932, the Poona Pact was created between B.R. Ambedkar and Mahatma Gandhi to shape India’s Dalit political representation but the debate on social justice is only getting shriller. In the latest judgment, the Supreme Court has ruled that Reservation is not a Fundamental Right while rejecting a petition seeking OBC quota in Tamil Nadu medical colleges. This article primarily discusses about major verdicts that have repeatedly reinstated that Reservations cannot be guaranteed as a Fundamental Right.

What is the Reservation?

• Reservation is a form of positive discrimination, created to promote equality among marginalized sections, so as to protect them from social and historical injustice.
• Generally, it means giving preferential treatment to marginalized sections of society in employment and access to education. 
• It was also originally developed to correct years of discrimination and to give a boost to disadvantaged groups.
• In India, people have been historically discriminated on the basis of caste.

What does the Constitution say on reservations?

Article 14 of the Constitution guarantees equality before law and equal protection of laws to everyone. Similarly, Article 16(1) and 16(2) assure citizens equality of opportunity in employment or appointment to any government office. 

Article 15(1) generally prohibits any discrimination against any citizen on the grounds of religion, caste, sex or place of birth. However, Articles 15(4) and 16(4) state that these equality provisions do not prevent the government from making special provisions in matters of admission to educational institutions or jobs in favor of backwards classes, particularly the Scheduled Castes (SCs) and the Scheduled Tribes(STs). Article 16(4A) allows reservations to SCs and STs in promotions, as long as the government believes that they are not adequately represented in government services.

Advantages of Reservation Policy in India:

• Historical injustice: Reservations are a political necessity in India, for giving due representation to all sections who have been historically neglected because of deep rooted caste system.
• Although Reservation schemes do undermine the quality of education but still ‘Affirmative Action’ has helped many of the under-privileged or under-represented communities to grow and occupy top positions in the world’s leading industries.
• Reservation schemes are needed to provide social justice to the most marginalized and underprivileged which is their human right.
• Meritocracy is meaningless without equality. First all people must be brought to the same level, whether it elevates a section or decelerates another, regardless of merit.

Negative fallouts of Reservation Policy:

• Reservation is similar to internal partition because in addition to being a form of ethnic discrimination, it also builds walls against inter-caste and inter-faith marriages.
• Reservations are the biggest enemy of meritocracy. By offering reservation through relaxed entry criteria, we are fueling inflation of moderate credentials as opposed to the promotion of merit based education system, which is the foundation of many progressive countries.
• Caste Based Reservation only perpetuates the notion of caste in society, rather than weakening it as a factor of social consideration, as envisaged by the constitution.  Reservation is a tool to meet narrow political ends, by invoking class loyalties and primordial identities.
• The benefits of reservation policy have largely been appropriated by the dominant class  within the backward castes, thereby the most marginalized within the backward castes have remained marginalized. It has been observed that mostly the beneficiaries of reservation have been the children of the highest paid professionals and high rank public officials.
• Poor people from “forward castes” do not have any social or economic advantage over rich people from backward caste. In such a case, discriminating against the “forward caste” goes counter to the logic of reservation. It would create another “backward class” some years down the line. This ‘perceived’ injustice breads frustration and apathy in the society. The recent protests demanding quotas by some of the forward castes, in Gujarat and Rajasthan, is the testimony to this fact.

What do the precedents say?

The history of reservations in India can be traced back to the cases of State of Madras v. Srimathi Champakam Dorairajan and Venkatraman v. State of Madras. In these cases the Indian Supreme Court held that any legislation and/or executive order prescribing reservations on the basis of caste were unconstitutional. Soon after the said two decisions the Parliament intervened and in exercise of its constituent power amended Article 15 by inserting Clause (4).

In 1962 in M.R. Balaji v. State of Mysore the court hearing a challenge to an order passed by the erstwhile state of Mysore reserving 68 per cent of seats in engineering and medical colleges for educationally and socially backward classes and SCs and STs, had ruled that Article 15(4) is an “enabling provision”, meaning that “it does not impose an obligation, but merely leaves it to the discretion of the appropriate government to take suitable action, if necessary”. 

Five years later, in 1967, in C.A. Rajendran v. Union of India reiterated this position, holding that the government is under no constitutional duty to provide reservations for SCs and STs, either at the initial stage of recruitment or at the stage of promotion.

The court said, Article 16(4)does not confer any right on the citizens and is an enabling provision giving discretionary power to the government to make reservations. 

The position went on to be reiterated in several other decisions, including Indra Sawhney v. Union of India (1992) and M Nagaraj v. Union of India (2006). 

Recently, the court in Mukesh Kumar &Anr. v. The State of Uttarakhand &Ors. (February 2020), held that Article 16(4) and 16(4A) are in the nature of enabling provisions, vesting a discretion on the State Government to consider providing reservations, if the circumstances so warrant and it was ruled that “there is no fundamental right which inheres in an individual to claim reservation in promotion”, and that “no mandamus can be issued by court directing state government to provide reservations.” The judgment added that it is for the State government to decide whether the mode of reservation was necessary and the state could form its own opinion on the basis of the material it has in its possession or may gather the same and satisfy the court that such reservations were necessary.

In Umedsinh P.Chavda v.Union of India and Ors. (June 2020), the Supreme once again held that Right to Reservation is not a Fundamental Right while rejecting the pleas challenging the centre’s decision to not grant 50% reservation to OBCs in Tamil Nadu medical colleges. It was argued that in the past academic years, the OBCs were “grossly under-represented” in the all-India quota seats for undergraduate, diploma, PG diploma and PG medical colleges across the country and it was submitted that the denial of admissions to OBC candidates were a violation of their fundamental right.

Consequences of this Judgment

• Higher chances of a rise in the unequal system.
• Possibility of imbalance in social representation if quotas are not implemented.

CONCLUSION

India still tackles with the challenge of ameliorating the conditions of those who are socially discriminated. Reservation is good, as far as it achieves the goal in the appropriate manner that can benefit the downtrodden and economically backward sections of the society, but the idea of reservation is often misused by those who snip away the privileges that are to be given to the needy. The latest judgment is a reminder that affirmative action programs allowed in the Constitution flow from “enabling provisions” and are not rights as such and this legal position is not new. The issue of reservation remains to be a cause of divergence between the reserved and the non- reserved sections of the society.  Meanwhile, calls for reform and rethinking reservation policies gets louder.