Nearly nine decades after the 1932 Poona pact between B.R. Ambedkar and Mahatma Gandhi that initiated reservation for backward classes, the debate on social justice is only getting shriller. In the latest, a February 7 Supreme Court order, that states that reservation is not a fundamental right, has sparked an intense political debate and disquiet amongst backward communities.

Context

The SC was deciding a group of appeals pertaining to the reservations to SC’s and ST’s in promotions in the posts of Assistant Engineer (Civil) in the Public Works Department, Government of Uttarakhand.
It 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.’

What does the Constitution say on reservations?

Article 14 of the Constitution guarantees equality before the 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 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 did the Hon’ble Supreme Court rule?

Reservation is not a Fundamental Right

Article 16 (4) and 16 (4-A) are in the nature of enabling provisions, vesting a discretion on the State Government to consider providing reservations, if the circumstances so warrant.
It is settled law that the State Government cannot be directed to provide reservations for appointments in public posts.
Similarly, the State is not bound to make reservations for Scheduled Castes and Scheduled Tribes in matters of promotions.

Quota in promotion

The judgment added that it is for the State Government to decide whether this was necessary.
The State can form its own opinion on the basis of the material it has in its possession already or it may gather such material through a Commission/Committee, person or authority.
All that is required is that there must be some material on the basis of which the opinion is formed.
The court should show due deference to the opinion of the State and such opinion is not beyond judicial scrutiny, SC said.

Need for quantifiable data

However, if the state wishes to exercise their discretion and make such provision, the State has to collect quantifiable data showing the inadequacy of representation of that class in public services, the bench said.
It added that if the decision of the State Government to provide reservations in promotion is challenged, the State concerned shall have to place before the Court the requisite quantifiable data and satisfy the Court that such reservations became necessary.
It should be on account of the inadequacy of representation of SCs and STs in a particular class or classes of posts without affecting the general efficiency of administration as mandated by Article 335 of the Constitution.
On the requirement for data collection, the court said this is only to justify reservation to be made in the matter of appointment or promotion to public posts, according to Article 16 (4) and 16 (4-A) of the Constitution.
As such, collection of data regarding the inadequate representation of members of the SCs and STs is a prerequisite for providing reservations and is not required when the State Government decided not to provide reservations.

What do the precedents say?

There are several major Supreme Court judgments that have, in the past, ruled that Articles 15(4) and 16(4) does not provide a fundamental right per se.
A five-judge apex court bench, as early as 1962 in the R. Balaji v. the State of Mysore 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”.
The court was hearing a challenge to an order passed by the erstwhile state of Mysore reserving 68 percent of seats in engineering and medical colleges for educationally and socially backward classes and SCs and STs.
Five years later, in 1967, another five-judge bench in 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.
Article 16(4), it said, 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 the nine-judge bench ruling in Indra Sawhney v. Union of India (1992) and the five-judge bench decision in M Nagaraj v. Union of India (2006).

What has happened in the Uttarakhand case?

The Court set aside the Uttarakhand High Court order directing data collection on the adequacy or inadequacy of representation of SC/ST candidates in the State’s services.
Its reasoning is that once there is a decision not to extend reservation — in this case, in promotions — to the section, the question whether its representation in the services is inadequate is irrelevant.

What does the judgment mean?

Reservations are not rights: The latest judgment is a reminder that affirmative action programs allowed in the Constitution flow from “enabling provisions” and are not rights as such.
Not a new legal position: This legal position is not new. Major judgments- these include those by Constitution Benches-note that Article 16(4), on the reservation in posts, is enabling in nature.
The state is not bound to provide reservation: In other words, the state is not bound to provide reservations. But if the state provides reservations, it must satisfy the following two criteria-
- For the backward class: It must be in favor of sections that are backward.
- Inadequately represented: And inadequately represented in the services based on quantifiable data.

Question of government obligation

The idea that reservation is not a right may be in consonance with the Constitution allowing it as an option.
But a larger question looms is there no government obligation to continue with affirmative action if-
- The social situation that keeps some sections backward.
- And at the receiving end of discrimination persists?

Consequences of this judgment

Possibility of the unequal system: Some may even read into this an inescapable state obligation to extend reservation to those who need it, lest its absence renders the entire system unequal.
Possibility of perceptible imbalance: For instance, if no quotas are implemented and no study on backwardness and extent of representation is done, it may result in a perceptible imbalance in social representation in public services.

Why reservation matters for equality?

Reservation is no more seen by the Supreme Court as an exception to the equality rule; rather, it is a facet of equality.
The terms “proportionate equality” and “substantive equality” have been used to show that the equality norm acquires completion only when the marginalized are given a legal leg-up.

Substantive Equality under question

Formal equality is about treating all people alike and distributing resources equally among them.
However, someone at a disadvantage needs support to a greater extent than someone who is comfortably placed. Substantive equality recognizes this qualitative difference.
Unlike formal equality, it classifies the prospective beneficiaries on the basis of their need and the likely scope of benefit to them.
It takes into account people’s location along an axis of advantages and disadvantages. If substantive equality is part of our right to equality, it is untenable to insist that reservation is not a right.
While a limited interpretation of fundamental rights may be technically correct, it will not make for sound policy.

Way forward

Meanwhile, calls for reform and rethinking reservation policies get louder; one question is whether there’s a need to continue with reservation and if benefits have reached targets.
The challenge for India is that while many sections of the society remain disadvantaged, political action has resulted in the relative discrimination within reserved groups.
As the reservation pie grows larger, in effect, it becomes a method of exclusion rather than inclusion.
It is time that India has to make a critical assessment of its affirmative action programs.
Simplification, legislative sunsets, and periodic reviews should be important principles in the redesign.