Reservation is not a fundamental right

Author :- Nancy Kesarwani

Co – author –  Apporva singh

This statement by Supreme Court in few cases recently has jump-started a debate. Many political leaders and parties have been left smoldering over this remark of the Supreme Court. Many of Indian citizen called in question this judgment of the Supreme Court. But the fact that reservation cannot be avouched as a fundamental right is in a bred-in-the-bone position under the law and this has been pointed out in several judgments in the past.

Fundamental rights are enshrined under Part 3^rd of the Indian constitution. It have been classified under the six categories-Right to Freedom, Right to Equality, Right against Exploitation, Right to Freedom of Religion, Cultural and Educational rights and Right to constitutional remedies. These Fundamental Rights are envisaged in Part III (Articles 12 to 35) of the Indian Constitution.

Fundamental Rights play a revelatory role because they are most essential for the attainment of the full intellectual, moral, and spiritual status of an individual. Therefore, the objective behind the inclusion of Fundamental Rights in the Constitution was to establish a government of Law to preserve individual liberty, building an equitable society, and establish a welfare state. Also to protect the basic values exercised by the citizens of the country since the ancient time.

A question is being asked that: When reservation provisions are stated under article 15(4) and 16(4), then why it can’t be cogitated a fundamental right?

Article 14 of the Constitution of India reads as under: ‘The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Similarly, Article 16(1) and 16(2) cinches citizen’s equality of opportunities in matters analogous to employment or appointment to any government offices.

Let’s see what Article 15(4) and 16(4) talks about:

Article 15(4) says: State has the authority to make special provisions for the incubation of socially and educationally backward classes. This article is an exception to clauses (1) and (2) of Article 15. As we know article 15 states that there will be no discrimination on grounds of religion, race, caste, etc.

A five Judged bench of Apex court in M.R Balaji v. State of Mysore AIR 1973 SC 649 has held that Article 15(4) is only accrediting provision and does not impose any delinquency on the state to take any white-headed action under it. It merely confers discretion to act if necessary by way of making special provision for the upliftment of the backward classes, a Writ cannot be issued to the state to make a reservation.

Article 16(4) states that – It empowers the state to make special provisions for reservation of appointments of posts in favor of the Scheduled Castes and the Scheduled Tribes which, in the opinion of state, are not congruously represented in the public services under the state. Again this article is also an approbating provision. Here again it is in the hands of the state to act upon it.

A nine-judge bench of Supreme Court in Indira Sawhney V. Union of India and ors AIR 1993, SC 477 has examined article 16(4) in detail and held that;

1. No reservation should be granted in promotions.

2. The Creamy layer must be excluded from backward classes.

3. The reservations contemplated in clause (4) of article 16 should not exceed 50% of the criterion.

These are some important points in the judgment given by a majority of 6:3.

In M. Nagraj V. Union of India, AIR 2007 SC 71 Supreme court held that if the state wishes to exercise their discretion and make promotions for SC/STs the state is required to accomplish certain conditions which are given as follows:

Firstly, the state has to make sure that it has accurate computable data which strongly specifies the social and economical backwardness of the class in public employment.

Secondly, the state has to make sure that it does not extend reservation irrationally or on the basis of absurd grounds.

Thirdly, No matter what the state should not exceed the ceiling-limit of 50% in its reservation provisions.

Also Supreme court had upheld the constitutional validity of the 77^th (This amendment decided to continue the existing policy of reservation in promotion for the Scheduled Castes and   Scheduled Tribes), 81^st( Through this amendment, government introduced Article 16(4)(b) which provides that unfilled vacancies of one year should not be added in the next year.),   82nd (Nothing in Article 335 shall prevent the state from making any provisions in the favour of SC/STs for relief in computable marks with respect to job promotion.) and 85^th (Provided for “consequential seniority” in the case of promotion by the virtue of rule of promotions for the SC/STs.) Amendments.

So it is settled law that Reservation is not a fundamental right. It is at the discretion of the Central and state governments, reservation provisions can be made. It is open to the state to make reservation in promotion for SCs and STs in proportionate to their representations in the general population.

In my opinion, reservation needs a fresh outlook. If we take a look from a broader perspective, we can analyze that caste system is now not so prevalent in India but economic equality is way to close to reach a level that can cause destruction. So if the government consider economic backwardness as the base for reservation, it can benefit India in achieving economic as well as social equality. In order to attain an egalitarian society, we need to remove socio-economic inequalities. We must deliver the benefits of reservation to only those who actually are in need of it. This can only be attained if we remove the creamy layer. The principle of creamy layer emanates from the broad doctrine of equality itself. Unless the creamy layer is removed from education and service reservations, the benefits would not reach the group in whose name the impugned legislation was passed- the poorest of the poor. One question that should be raised is whether there is a need to continue with reservation or we have reached the targets. Though the laws have been laid down in this regard, the procedural requirements and workability of the provisions must be scrutinized carefully before awarding reservations. Grounds like inadequacy and backwardness should be kept in mind. As far as reservation being a fundamental right is concerned I am of the view that reservation cannot and should not be a fundamental right.