Reservation is not a fundamental right- Declares the Apex Court

Introduction

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.

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 before law to everyone. Similarly, Articles 16(1) and 16(2) assure citizens equal 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 backward 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.

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,1951. In these cases, the  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, the court in M.R. Balaji v. State of Mysore 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, the court 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 a court directing the 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 Indiaand Ors. (June 2020), the Supreme once again stated 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 the 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.