Are reservations a fundamental right? A tale of two judgments

We take a look back at a 1975 Supreme Court judgment, the spirit of which seems to be contrary to the top court’s recent rulings and utterances

On 7 February 2020, a Supreme Court Bench comprising Justices L. Nageswara Rao and Hemant Gupta ruled on a special leave petition of the Uttarakhand government that challenged the high court’s verdict in a case filed by some of its Scheduled Caste employees against it. The then Congress state government had decided on 5 September 2012 that Scheduled Caste and Scheduled Tribe candidates for posts in public services of the state would no longer be granted reservation. The Scheduled Caste employees approached the High Court, which struck down the directive of the state government. When the then Bharatiya Janata Party (BJP) state government sought a review of the judgment, the High Court backtracked saying that while the state government is not obligated to provide reservation to Scheduled Castes and Scheduled Tribes in promotion, it is obligated to collect data to ascertain inadequacy of representation of Scheduled Castes and Scheduled Tribes in the public services of the state to decide whether reservation is needed. The High Court gave the state government four months to collect the data. That is when the state government moved the Supreme Court, arguing that there is no fundamental right to claim reservation in appointments or promotions to public posts; that there is no constitutional duty on the part of the State Government to provide reservations; and that Article 16 (4) and 16 (4-A) are merely enabling provisions. 

Speaking with FORWARD Press, Prof Mohan Gopal, eminent legal scholar and former vice-chancellor, National Law School, Bengaluru, said: “The two-judge Bench decision of the Supreme Court in Mukesh Kumar vs The State of Uttarakhand (decided on 7 February 2020) and the latest remarks of one of the judges on the Mukesh Kumar bench, reportedly verbally denying the existence of a fundamental right to reservation while hearing another case, are a source of great concern.” 

Given below is an excerpt from the judgment:

11. Article 16 (4) and 16 (4-A) do not confer fundamental right to claim reservations in promotion 9. By relying upon earlier judgments of this Court, it was held in Ajit Singh (II) (supra) that 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 appointment in public posts. Similarly, the State is not bound to make reservation for Scheduled Castes and Scheduled Tribes in matters of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing inadequacy of representation of that class in public services. 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 on account of inadequacy of representation of Scheduled Castes and Scheduled Tribes in a particular class or classes of posts without affecting general efficiency of administration as mandated by Article 335 of the Constitution.

12. Article 16 (4) and 16 (4-A) empower the State to make reservation in matters of appointment and promotion in favour of the Scheduled Castes and Scheduled Tribes ‘if in the opinion of the State they are not adequately represented in the services of the State’. It is for the State Government to decide whether reservations are required in the matter of appointment and promotions to public posts. The language in clauses (4) and (4-A) of Article 16 is clear, according to which, the inadequacy of representation is a matter within the subjective satisfaction of the State. 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 which does not, however, mean that the opinion formed is beyond judicial scrutiny altogether …
(Source: indiankanoon.org)

What are the relevant clauses of Article 16 under ‘Fundamental Rights’ (Part III) of the Constitution?

16. (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office [under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory] prior to such employment or appointment.

(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

(4A) Nothing in this article shall prevent the State from making any provision for reservation [in matters of promotion, with consequential seniority, to any class] or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.

Prof Mohan Gopal, former vice-chancellor, National Law School, Bengaluru

Prof Gopal added: “In deciding that Articles 16 (4) and 16 (4-A) do not confer a fundamental right to claim reservations in promotion, Mukesh Kumar judgment follows an erroneous line of Constitutional bench precedents. This line of precedents needs to be urgently challenged before a Bench of appropriate size. It is also worrisome that some of the remarks in the Mukesh Kumar judgment go well beyond this more limited (although very important) point of law. The judgment says, for example, ‘In view of the law laid down by this Court, there is no doubt that the State Government is not bound to make reservations’. The decision of the Mukesh Kumar court to strike down a High Court order in which the State was asked to collect data on representation to determine whether reservation is necessary is also troubling – does it indicate that the Court is not only denying Government obligations to make reservations and the right of discriminated communities to get reservations, but is now not even prepared to be supportive of reservations in favour of discriminated communities? 

“The constitutional jurisprudence of the Court on the fundamental right to reservation is erroneous. It stands on weak reasoning. It does not adequately recognize the centrality of equality to the ethos of the Constitution or the mission of the Constitution to transform our society into a just society. This anti-reservation jurisprudence needs to be urgently challenged.”

State of Kerala & Another vs N.M. Thomas & Others, 1975

In the past, the Supreme Court has recognized the centrality of equality to the ethos of the Constitution while ruling on reservations in promotions, at least in this one instance.

A lower-division clerk working in a government office had served the required number of years to be eligible for promotion, cleared the mandatory examination, yet two years later he still wasn’t promoted. His name was N.M. Thomas and belonged to the general category. There weren’t enough vacancies to accommodate him, for some had been reserved for the Scheduled Castes (SCs) and Scheduled Tribes (STs). By introducing a new rule (Rule 13AA), the state government had exempted these SC and ST candidates from clearing the exam for two years in addition to the two years granted to all candidates after promotion. Earlier they had been promoted on the condition that they would return to their previous posts if they failed to clear the exam within two years. When, even after two years, the promoted SC and ST candidates had not cleared the mandatory exam and the posts didn’t become vacant, N.M. Thomas and others filed a case against the Kerala government. The Kerala High Court ruled in favour of N.M. Thomas and others and struck down the new rule introduced by the government. The case reached the Supreme Court and the judgment was to be delivered on 19 September 1975. The Bench comprised Justices A.N. Ray, Hans Raj Khanna, Kuttyil Kurien Mathew, M.H. Beg, V.R. Krishna Iyer, A.C. Gupta and S.M. Fazal Ali. 

Article 16 (4-A) – on reservations for Scheduled Castes and Scheduled Tribes in promotions – did not exist then. It was incorporated only in 1995 through a Constitutional Amendment. Yet, the Supreme Court overturned the High Court judgment with a 5-2 majority. Justices A.N. Ray, Kuttyil Kurien Mathew, M.H. Beg, V.R. Krishna Uyer, and S.M. Fazalali ruled in favour of the state government’s affirmative action while Hans Raj Khanna and A.C. Gupta dissented. The opinion of Justice K.K. Mathew stood out, declaring in not so many words that reservation is a fundamental right:

(1) The concept of equality of opportunity is an aspect of the more comprehensive notion of equality. The idea of equality has different shades of meaning and connotations. It has many facets and implications.   

(2) The notion of equality of opportunity has meaning only when a limited number of posts as in the present case should be allocated on grounds which do not a priori exclude any section of citizens of those that desire it. A priori exclusion means exclusion on grounds other than those appropriate or rational for the good in question. The notion requires not merely that there should be no exclusion from access on grounds other than those appropriate or rational for the good in question but the grounds considered appropriate for the good should themselves be such that people from all sections of society have an equal chance of satisfying them. 

(3) To give equality of opportunity for employment to the members of Scheduled Castes and Scheduled Tribes, it is necessary to take note of their social, educational and economic environment. Not only is the Directive Principle embodied in Art. 46 binding on the law-maker as ordinarily understood but it should equally inform and illuminate the approach of the Court when it makes a decision as the Court also is ‘State’ within the meaning of Art. 12 and makes law even though interstitially. 

(4) Equality of opportunity is not simply a matter of legal equality. Its existence depends not merely on the absence of disabilities but on the presence of abilities.

(5) The guarantee of equality before the law or the equal opportunity in matters of employment is a guarantee of something more than what is required by formal equality. It implies differential treatment of persons who are unequal. Egalitarian principle has, therefore, enhanced the growing belief that Government has an affirmative duty to eliminate inequalities and to provide opportunities for the exercise of human rights and claims. 

(6) Fundamental Rights as enacted in Part III of the Constitution are, by and large, essentially negative in character. They mark off a world in which time Government should have no jurisdiction. In this realm, it was assumed that a citizen has no claim upon [the] Government except to be left alone.

(7)(a) But the language of Art.16(1) is in marked contrast with that of Art. 14. Whereas the accent in Art 14 is on the injunction that the State shall not deny to any person equality before the law or the equal protection of the laws, that is, on the negative character of the duty of the State, the emphasis in Art. 16(1) is on the mandatory aspect. 

(b) If equality of opportunity guaranteed under Art. 16(1) means effective material equality, then Art. 16(4) is not an exception to Art. 16(1). It is only an emphatic way of putting the extent in which equality of opportunity could be carried, namely even up to the point of making reservation.

(c) Art. 16(1) is only a part of a comprehensive scheme to ensure equality in all spheres. It is an instance of the application of the larger concept of equality under the law embodied in Arts. 14 and 15. Article 16(1) permits of classification just as Art. 14 does. But, by the classification, there can be no discrimination on the ground only of race, caste and other factor mentioned in Art.16(2).

(d) The word ‘caste’ in Art. 16(2) does not include Scheduled Castes. The definition of Scheduled Castes’ in Art. 366(24) shows that it is by virtue of the notification of the President that the Scheduled Castes come into being. Though the members of the Scheduled Castes are drawn from castes, races or tribes, they attain a new status by virtue of the Presidential notification. Moreover, though the members of [a] tribe might be included in Scheduled Castes, tribe as such is not mentioned in Article 16(2). 

(e) Article 16(1) and Art 16(2) do not prohibit the prescription of a reasonable qualification for appointment or for promotion. Any provision as to qualification for employment or appointment to office reasonably fixed and applicable to all would be consistent with the doctrine of equality of opportunity under Art. 16(1). 

(8) Today, the sense that [the] Government has affirmative Responsibility for elimination of inequalities, social, economic or otherwise, is one of the dominant forces in constitutional law. 

(9) The concept of equality of opportunity in matters of employment is wide enough to include within it compensatory measures to put the members of the Scheduled Castes and Scheduled Tribes on par with the members of other communities which would enable them to get their share of representation in public service. 

(10) If reservation is necessary either at the initial stage or at the stage of promotion or at both to ensure for the members of the Scheduled Castes and Scheduled Tribes equality of opportunity in the matter of employment, there is no reason why that is not permissible under Art. 16(1) as that alone might put them on parity with the forward communities in the matter of achieving the result which equality of opportunity would produce. Equality of result is the test of equality of opportunity. 

(11) The State can adopt any measure which would ensure the adequate representation in public service of the members of the Scheduled Castes and Scheduled Tribes and justify it as a compensatory measure to ensure equality of opportunity provided the measure does not dispense with the acquisition of the minimum basic qualification necessary for the efficiency of administration.

(12) It is a mistake to assume a priori that there can be no classification within a class, say, the Lower Division Clerks. If there are intelligible differentia which separate a group within that class from the rest and that differentia have nexus with the object of classification, there is no objection to a further classification within the class. 

(13) In the instant case Rule 13AA has been enacted not with the idea of dispensing with the minimum qualification required for promotion to a higher category or class, but only to give enough breathing space to enable the members of Scheduled Castes and Scheduled Tribes to acquire it. The purpose of the classification made in r. 13AA is to enable them to have their due claim of representation in the higher category without sacrificing the efficiency implicit in the passing of the test. 

(14) The classification made in r. 13AA has a reasonable nexus with the purpose of the law. Rule 13AA is not intended to give permanent exemption to the members of Scheduled Castes and Scheduled Tribes from passing the test but only reasonable time to enable them to do so. That the power is liable to be abused is no reason to hold that the rule itself is bad.
(Source: indiankanoon.org)

Note Justice Mathew’s words: “… Art. 16(4) is not an exception to Art. 16(1). It is only an emphatic way of putting the extent in which equality of opportunity could be carried, namely even up to the point of making reservation.”

Copy-editing: Amrish Herdenia

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