Monday, 8 August, 2022
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SC quota ruling is nothing new — reservation in jobs was never a fundamental right

SC ruling that reservations in jobs, promotions are not a fundamental right reiterates a long-held reading of constitutional provisions on quota. 

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New Delhi: The Supreme Court Friday ruled that there is no fundamental right to reservations in appointments and promotions under articles 16(4) and 16(4A) of the Constitution. 

The apex court ruled that it was the discretion of the governments, either at the state or central level, to grant reservation in promotions. The ruling has since evoked a sharp response from various stakeholders and political parties. 

Congress leader Rahul Gandhi accused the BJP and the RSS of having always been against reservations to weaker sections of society. He added that the Congress would not let quotas in jobs and education come to an end.

The CPI claimed that Dalits, tribals and backward classes are “disappointed and agitated” with the Supreme Court ruling. 

However, the fact that reservation cannot be claimed as a fundamental right is a settled position under the law, and has been pointed out by several judgments in the past. 

The Supreme Court’s judgment Friday relied on these precedents to rule that since it is not a fundamental right, the government is not obligated to collect quantifiable data showing a community is inadequately represented in public services — as required by Article 16(4A) — if it has already decided not to grant reservations in promotions.

ThePrint explains the precedents and chronicles the dispute that culminated in the Supreme Court’s latest judgment.  

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What does the Constitution say on reservations?

Article 14 of the Constitution guarantees equality before 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. 

Additionally, Article 29(2) bars discrimination against any citizen with regard to admission to educational institutions maintained by the government or receiving aid out of government funds on grounds of religion, race, caste etc. 

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 favour 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?

There are several major Supreme Court judgments that have, in the past, ruled that Articles 15(4) and 16(4) do not provide a fundamental right per se. 

A five-judge apex court bench, as early as 1962 in the M.R. Balaji v. 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 per cent 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 C.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). 

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How did the case reach the Supreme Court?

The controversy in the current case pertained to reservations to SCs and STs in promotions for the post of assistant engineer (Civil) in the Uttarakhand government’s Public Works Department.

The reservation was initially provided for under the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994. Section 3(7) of this Act stated that the government orders providing for reservations in promotions, which were in force in the time of commencement of the Act in 1994 would continue to operate, until modified or revoked. 

After the formation of Uttarakhand in 2001, the Act was made applicable to the new state, with a few modifications. Section 3(7) was, however, subsequently held unconstitutional by the Uttarakhand High Court in 2011. 

The state government then constituted a committee for collection of quantifiable data on the backwardness of the reserved communities in Uttarakhand and the inadequacy of their representation in public posts, to satisfy the condition under Article 16 (4A).

In 2012, the then state government decided that all posts in public services will be filled up without any reservations for SCs and STs. All government orders providing for such reservations were also scrapped. This was once again challenged in the high court.

The Uttarakhand High Court then struck down the State’s 2012 decision in April last year. A review petition against this order was filed in the high court, which did acknowledge that Article 16 (4A) is an enabling provision.

But it directed the state government to collect quantifiable data regarding inadequacy of representation of SCs and STs in state services, and then take a decision on providing reservations in promotions. This decision was challenged in the Supreme Court. 

What SC ruled?

The apex court has now re-iterated that Articles 16(4) and 16(4A) do not confer any fundamental rights to claim reservations in promotion. It is for the state government to decide whether reservations are required for appointment and promotions to public posts, it said. 

“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 reservations for Scheduled Castes and Scheduled Tribes in matters of promotions,” it observed. 

However, if the state government does want to exercise this discretion and provide reservations, it would have to first collect quantifiable data showing inadequacy of representation of that class in public services.

The court then opined that the high court should not have struck down the state government’s 2012 decision to not provide reservation in promotions.

It further ruled that since Article 16(4) and 16 (4A) do not provide a fundamental right, courts cannot issue a direction to the state government to provide reservations. It clarified that since the state government had decided not to provide reservations, it did not have to collect quantifiable data at all. 

With these observations, it set aside the high court order. 

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  1. Reservations in India is practiced for the very very long period of 5000 years above, precisely now called Four Varnas Brahmins, Kshatriyas, Vyshyas & Shudras all are touchable varnas each, but a fifth varna has been in vogue i.e.UNTOUCHABLES, it is irrational, illogical and very inhuman. But the four varnas never thought about it to establish a humanistic society in India, but perpetuating it for their selfish hierarchy. Under the Constitution of India adopted ” by the people” in 1950, although it was abolished under Art. 17, the caste discrimination, prejudices, harassment , atrocities both against men, women and children are still practiced till today. But the Supreme Court, High Courts and entire Judiciary in India, to whom I and all the Untouchable Communites still have faith, but the Honourable Judges,in my humble opinion, ignoring the realities being perpetuated even in this modern technologically advanced stage, judgements are delivered against reservations for SCs & STs means the interpretation of Constitutional Scheme is not fair. If I raise the proposition to constitute Judicial Commission, which would be a fair and people’s ambition, the Supreme Court shall come forward, shall it happen? Then why shall it not be tabled before PARLIAMENT?

  2. Reservation is getting hatred because the person who is rich also taking reservation . If government would say that the person who has taken use of reservation and take job so he should be considered as General and give chance to weaker SC/ ST section. Because the same person and his children is taking reservation again and again and not giving chance to poor section of society.Because Poor section has not so much capability to compit rich people.

  3. Dear Subhendu… what’s Ur definition of economically backward class… 8 lakh/ annum i.e. 66,666/month…salary of a class-I officer…If Reservation is creating hatred, then why are u so excited when Reservation is given to so called Economically Weaker Sections…Why do u keep mum when so called weaker section guys buy medical and engineering seats under management quota and NRI quota by dint of money… Representation not reservation

  4. No Subhendu, you are wrong, because reservation is not some poverty alleviation program that only the economically backward should recieve it. It is a means to provide for adequate representation of the historically marginalised communities in government institutions and services so that they can be brought into the mainstream of India. Don’t be fooled by the selfish brahminical propoganda who have been sucking the resources and holding sal the plum posts like leechers since ages. I spit on those incompetent assholes. I call them incompetent because they don’t want the starting line to be the same so that they can always be the winner. Shame on them.

    • What propaganda? So yes your ancestors were abused 1000 uears ago. Get over it! People have been abused all over the world and instead of becoming liabilities on the economy they worked hard! If three generations of a family hsve recieved reservations then no, it does not matter if your family was abused 10 generations ago. At some point you have to get over your own opression. Also if you really want to talk about incompetence then tpeople with reservations and a lower cutoff who cant make it still crib about brahminism in India. People with all the means with less than half the marks than general catagory get the seats, jobs and promotions. You really believe people scoring less than half are more competent?

  5. They are enjoying their reservation for >5000 years, for > 200 generations, exploiting > 99% all resources but they want to discuss, hate and abolish less than 0.1 % Constitutional Reservation for less than 2 % SC/ST/OBC, population of the country.

    • Reservation should be for the deserved ones not for the reserved ones. People who took the benefit of reservation and got food positions should leave reservation as an act of morality. Reservation is creating more hatred among social classes. And it should be applicable to only those people who are economically backward.

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