Context

The recent Supreme Court judgment, that there is no fundamental right to claim reservation in promotions, has caused some political alarm.

Received wisdom in affirmative action jurisprudence

• Presence of sound legal framework for a reservation: The received wisdom in affirmative action jurisprudence is that a series of Constitution amendments and judgments have created a sound legal framework for reservation in public employment, subject to the fulfilment of certain constitutional requirements.
• Solidification of reservation as an entitlement: It is also accepted that the framework has solidified into an entitlement for the backward classes, including the SCs and STs.

What does the judgement mean?

• Reservations are not rights: The latest judgment is a reminder that affirmative action programmes 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 favour of sections that are backward.
  • Inadequately represented: And inadequately represented in the services based on quantifiable data.
• What 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.
  • What was the reasoning? 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.

Question of government obligation

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

Why reservation matters for equality?

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

What may be the consequences of this judgement?

• 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.

Conclusion

Ensuring adequate representation to disadvantaged sections is a state obligation and the state must play its role in ensuring their representation by appropriate legislation.

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