By: Jay Bhaskar Sharma and Gunjan Shrivastav
The strength of the Judiciary lies in the correction of its own errors of interpretation from time to time and move forward. The Supreme Court has been reshaping the Constitution of India in this way since its inception and has strived to achieve its idea of equality. Furthering this mandate of equality, reservation in promotion was introduced in 1955 to ensure proportionate representation for the Scheduled Castes and Scheduled Tribes at every level in services. It was done in order to reduce the obstacles that they would encounter at the lower level of services to reach higher ranks. However, much more needs to be done to uplift the weaker sections of the society whose interests were the utmost priority in the mind of the framers of the Constitution. This responsibility of alleviating them in order to enable them to enjoy the right to equality of opportunity rests on all the three wings of the State.
The Supreme Court in its recent judgment in Mukesh Kumar &Anr v The State of Uttarakhand has held that the right to a reservation is not a fundamental right and the State government is not bound to provide quantifiable data to justify its decision of not providing reservation. The conflict arose when the Uttarakhand government decided to fill all the posts in the State Public Services without providing any reservation to SCs and STs. This was challenged before the Uttarakhand High Court. The High Court directed the Government to collect quantifiable data to determine whether the representation of SC and ST communities was adequate or not and accordingly make reservations for them.
The High Court recognised the fact that it was important to safeguard affirmative action under Article 16(4) and the enforcement of the same should be based on reasonable grounds, highlighting the lack of representation of the SCs and STs. However, the Supreme Court overruled the High Court’s decision and held that Article 16(4) of the Constitution is only an enabling provision and does not confer a ‘right’ to reservations. The Court agreed with the submission made by the appellant and was of the view that there is no constitutional duty on the part of the State Government to provide reservations. Once a decision is taken not to provide reservation, the same cannot be challenged in the court. The Supreme Court relied on the judgment of Suresh Kumar Gautam v State of U.P. where it stated that under Article 16(4) inadequacy of representation is the ‘subjective satisfaction of the State’.
The Court went ahead and held that the State is not required to collect the requisite data when it decides not to provide reservations and that no mandamus can be issued by the court to the State Government to provide reservation in light of the law laid down in C.A. Rajendran v Union of India. This interpretation of Article 16(4) is extremely problematic as it allows the state to do away with the entire process of forming an ‘opinion’ under Article 16(4) by not collecting the necessary data. It would result in the creation of more hurdles for the upliftment of the backward sections of the country and defeat the constitutional scheme of equality. Therefore, there are two major flaws in the judgment.
RIGHT TO RESERVATION INCLUDES BOTH POWER AND DUTY
First, Article 16(4) is an enabling provision that confers power coupled with a duty on the state. It allows the State Government to make provision for the reservation for SC and ST communities only when the state is of the opinion that they are not adequately represented. Nevertheless, it is the duty of the State to collect quantifiable data so as to form an opinion to determine whether or not they are adequately represented. However, the Supreme Court adopted an asymmetrical view of Article 16(4) by which it is not necessary for the state to collect quantifiable data if it does not want to give reservation. But the problem with such an interpretation is how the State forms an ‘opinion’ as stated in Article 16(4) that the reservation should be denied. Shouldn’t the subjective satisfaction for not providing reservation be based on some material or quantifiable data? When the Supreme Court asserted that right to a reservation is not a fundamental right and accordingly a writ of mandamus cannot be issued by the Court, it failed to look at it from the perspective of the right to substantive equality provided under Article 14, 15 and 16 of the Constitution.
Article 16(4) is a facet of Article 16(1), and an emphatic restatement of Article 16(1) which means that if status quo involves formally equal treatment of individuals in substantively unequal circumstances then Article 16(4) is to be invoked. Moreover, as held in State of Kerala v. N.M. Thomas, the State should take measures so as to bridge the substantive inequality which might result in the breach of Article 16(1). It was also propounded in N.M. Thomas that the equality of opportunity guaranteed by Article 16(1) does not merely provide formal or legal equality but ‘proportional equality’ or ‘progressive elimination of pronounced inequality’. The concept of proportional equality expects the State to take affirmative action in favour of disadvantaged sections of the society within the framework of liberal democracy. For this very reason, the Uttrakhand High Court kept the idea of substantive equality in mind and did not direct the State government to provide reservation. It directed the government to collect data on the inadequacy of representation so that a decision can be taken on how to remedy the existing substantive inequality.
DISCRETION OF STATE ARBITRARY
Secondly, this decision gives arbitrary power to the State executive to decide whether or not a reservation is to be given, without providing any sort of checks and balances. This would ultimately result in executive overreach as the State Executive will not be answerable for any reason or justification if they decide against providing reservation. When the Supreme Court in M. Nagaraj held that there is no fundamental right to reservation and it is a matter of discretion of the state to provide for reservation, it also stated that there must be ‘compelling reasons’ to have reservation in promotion, but efficiency in administration must not be impaired.
THE ECONOMIC IMBALANCE
P.S. Krishnan, a social justice expert in a 2018 interview explained that the problem here is that ‘compelling reason’ is an idea borrowed from American Jurisprudence. Unlike the Indian Constitution, the American Constitution does not have the provisions of social justice and social equality. The idea of affirmative action there has evolved in the absence of these concepts. In this regard, the US Supreme Court has stated that whenever a policy is introduced in which race is a factor, the policy is considered a suspect. Therefore, ‘compelling reasons’ need to be shown and affirmative action should be ‘narrowly tailored’ with the legislation being subjected to ‘strict scrutiny’. Now, in the case of India, no legislation is suspected. All the legislations are prima facie valid and presumed to be constitutional unless proved otherwise.
The Supreme Court through this judgment has taken away the burden from the State by giving it the leeway to not collect the quantifiable data to determine the representation of scheduled castes and scheduled tribes. It has shifted this burden to the petitioner who does not have access to the vast resources that the State has. This decision increases the cost that the petitioner will have to bear in order to claim reservation. This cost mainly includes the loss of employment opportunities. Similarly, for the Judiciary the cost would decrease as the Court does not have to issue a writ of mandamus to the State for collecting the data. This would altogether raise the social cost that underprivileged sections of the population will have to bear due to the arbitrary power conferred on the State by the Supreme Court.
When equality and justice are mandates of the Constitution, all measures of social justice, including reservation and reservation in promotion for Scheduled Castes and Scheduled Tribes automatically become mandatory. This makes it binding on the State to grant reservation. Therefore, in the authors’ opinion, with due respect to the Supreme Court, to treat reservation as a matter of discretion of the State is a basic constitutional error. This will not only result in the violation of substantive equality but would also give power to the state government to systematically do away with reservation scheme without providing any reasons for the same.
(Jay and Gunjan are currently law undergraduates at National Law School of India University, Bengaluru. They may be contacted at email@example.com.)
Cite as: Jay Bhaskar Sharma and Gunjan Shrivastav, ‘Right to Reservation: Should it Really be at State’s Discretion?’ (The RMLNLU Law Review Blog, 8 March 2020) <https://atomic-temporary-94482995.wpcomstaging.com/2020/03/08/right-to-reservation-should-it-really-be-at-states-discretion > date of access.