Reservation cannot be demanded as a right, reiterates Supreme Court; observes that state not duty-bound to provide it

  • Unless the government of the day decides to make a provision for reservation in the matters in which it is allowed, it can’t be demanded as a right

  • The Supreme Court has also in the past recognised that there are matters which fall beyond the scope and reach of judicial scrutiny relating to the subjective satisfaction of the state

  • The only check that the court can make in such cases is on the question of patent illegality in the conduct of the state

The Supreme Court, in a judgment handed down on Friday, reiterated its stance that the state is not duty-bound to provide reservations.

The issue related to Article 16(4) and 16(4)(A) of the Constitution that confers a power on the state to enact any provision for reservation in matters of appointments or promotion 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. The court held firm its view that the provision is only an enabling provision that does not make the state duty-bound to provide reservations and consequently guarantees no "right" to reservations.

 Reservation cannot be demanded as a right, reiterates Supreme Court; observes that state not duty-bound to provide it

File image of the Supreme Court. AP

The case concerned the Uttarakhand government filling all the posts in public services in the state without providing any reservations to Scheduled Castes and Scheduled Tribes. This was subsequently challenged in the Uttarakhand High Court, which in turn directed the government to collect quantifiable data regarding inadequacy of the representation of the Scheduled Castes and Scheduled Tribes in government services so as to make an informed decision regarding the provision of reservations. This was then appealed to the Supreme Court.

The Supreme Court, taking recourse to its previous decisions, stated that the duty of the state to make reservations is only a discretionary power which can be exercised only as per its wish and that the state government cannot be directed to provide reservations for appointment in public posts. Moreover, the need for the state to collect quantifiable data showing inadequacy of representation of that class in public services is only necessitated if it wishes to exercise its discretion and make such provision for reservations.

Therefore, the court held in para 12 that 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.

The decision is in line with the previous judgments rendered by the court.

The introduction of Article 16 (4-A) happened in light of the judgment of Indra Sawney versus Union of India, where the court had held that no reservations can be made in cases of promotions. Later, after the amendment, the Court in M Nagaraj versus Union of India upheld the constitutionality of the provision concerning promotions subject to the qualification of the state feeling the need to provide the quota. This stands in addition to the court's decision that Article 16(4) has to be read along with Article 335 of the Constitution — the effect of which is that the state should provide reservations on grounds of inadequate representation if such reservations do not adversely affect the maintenance of efficiency of administration.

It was further held in Nagaraj that the interest of certain sections of the society is to be balanced against Article 16(1) which protects the interest of every citizen in the entire society. Therefore, the court has made itself sufficiently clear that the mandate of the state to guarantee substantive equality is not just exercised in the form of providing reservations.

To understand this issue better, one just needs to read the wording of Article 16 4A:

"4A:  Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion,……"

The language is abundantly clear that the state should make a 'provision', and only then can reservations happen. Otherwise, such a provision can't be demanded as a matter of right. Any other reading of this provision is outright wrong on law.

Therefore, the decision of the court is not to be misunderstood. The court has neither undermined the need for affirmative action to uplift the historically suppressed sections of the society nor has it totally disregarded the need of reservation where the need arises.

The court only acknowledges that it is to be left to the subjective determination of the state to devise a plan so as to foster an egalitarian society. This need arises because many a times there might be other alternatives that might be better suited to guarantee equality than reservations. Therefore, whereas the state is duty-bound to guarantee equality, it is not duty-bound to guarantee it through reservations.

Hence, unless and until the government of the day decides to make a provision for reservation in the matters in which it is allowed, it can’t be demanded as a right. It should also be stressed with authority, that this is nothing new, as is being made out to be. This is a settled matter of law, and has been reiterated in a series of cases by the Supreme Court, before this one.

The Supreme Court has also in the past recognised that there are matters which fall beyond the scope and reach of judicial scrutiny relating to the subjective satisfaction of the state. The legislature, is indeed the best judge of the state of affairs (financial, economic, social etc) of a particular area. The only check that the court can make in such cases is on the question of patent illegality in the conduct of the state.

The court is bound to respect the separation of powers and therefore is to give due deference to the opinion of the state which is best suited to take any measure to alleviate the inequality in society.

Raghav Pandey is an Assistant Professor of Law at Maharashtra National Law University Mumbai and Neelabh Bist is a Fifth Year student of law at Maharashtra National Law University Mumbai.

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Updated Date: Feb 11, 2020 09:31:08 IST