Introduction:
Reservation, the term added in the constitution because of a basic reason that is deprivation in the country, deprivation is the biggest cause of caste discrimination and the term raised or births through its adverse effects is a reservation[1]. Initially, reservation for Scheduled castes and Scheduled tribes got a place in the Constitution of India, and this happened right after the independence of the country. The reason behind adding this provision was somehow also to meet the injustice that happened to these categories and also make sure that these groups won’t be discriminated against while having natural resources and basic needs as this was their fundamental right as well. Although there were always repercussions happening on the matter of reservations, related to its scope or area and its enactment.
Many believes that Dr. Bhimrao Ambedkar largely believes on the matter because he wishes to take the social dilemma of the society on the equal path means to provide every citizen of the country with a republic, sovereignist, and unbound country. He believes in the present, basically in his various speeches, he widely said that we should not focus on what ancestors did to our society or we should not blame them either we should make our constitution that strong as it will have positive or productive discrimination and spirit of unity. And this will help the country to make it strong and will never showcase holes in the matter of religious conflicts.[2]
The mentality is not much changed as there are still many people who think that one cannot address or settle disputes or discrimination only by imposing reservations in various fields like jobs, education, etc. what currently needed is the parity of reservations and actions that can change the wrongs happened in past which is forcing us to have reservations.
The basics of reservation according to the constitution of India, termed as the term needed to fix the rights of people who had been denied by their fundamental or basic rights in the history of the nation. But we need to keep this in mind as well talking about reservations doesn’t imply or make it to be a fundamental right. This works as a key for making the present better of these suppressed groups. This has been clearly said by the Supreme Court of India that reservations are not set to put in forward in every competition reserved groups and not unreserved, the basic aim was to maintain social, cultural, and educational marginalization in the society so that things won’t work in the wrong or impoverishment of the particular set of people. The term has been understood worse when the report of the Mandal commission comes into the effect as it says the reservation is a favor by upper castes towards the set of people who are not able to accommodate the ‘merits’ in life.
Reservations are always given due importance in the eyes of the apex court of the country but the change of meaning and development works as synonyms of evolution, and with due effect, things changed and while discussing the various judgments of the Supreme Court we’ll get to witness that change and will be able to understand the statement of apex court about stating reservation is not a fundamental right of the citizens and apex court can’t stop center on withdrawing laws on reservation.
Constitutional relation of Reservation
The constitution is little precise on this matter as Article 14 of our Constitution provides us with the power of equality before law or meant as equal protection of laws for everyone. Likewise, Article 16(1) and 16(2) empowers citizens for having equal opportunities in the matter of employment or appointment to any government office. In the matter of Article 15(1), it prohibits any discrimination in India based on race, sex, caste, or religion.[3]
We also have article 29(2) strictly prohibits discrimination against any citizens on the matter of having admission to any establishment maintained by the government and also prohibits receiving any aid from official funds based on race, caste or religion, etc. but this is worth mentioning that Article 15(4) and 16(4) states that any equality provision in the Constitution of India doesn’t bound government on not making any provisions on matters of education system and jobs which will be in favor of socially backward classes as SC’s and ST’s. And according to section 16(4A), this empowers the government to have reservations for SC’s and ST’s as long as the government believes in not having any representations of them in services offered by the government.
How did the matter reach to Apex Court of Country?
Case arose from the Uttarakhand where there was an issue of promotion of a civil engineer in regards to reservation for SC’s and ST’s in the government’s Public works department. Initially, reservation was provided under Uttar Pradesh Public Services Act, 1994. According to Section 3(7) of this act, the government will provide reservations in promotion which were in force while commencing this act and will be continued until the act is revoked or amended.
When in 2001 Uttarakhand was formed the act was again put in effect to the new state but this time, it was modified. Though Section 3(7) was termed unconstitutional according to the statement of the Uttarakhand High Court. After this state government assigned various committees in the state to analyze and collect some quantifiable data about socially backward communities and their representation in public posts to satisfy all the conditions mentioned in Article 16 (4A). Enacting on the reports submitted by various committees it was decided by the state government in 2012 to not give any reservations while assigning jobs on government posts. All previous orders given by the state government were also discarded.
The decision of 2012 was denied by the court as the review petition was filed against it in the High Court which determines and accepts that Article 16(4A) is an enabling provision. But then the court said to collect the quantitative data about representation of SC’s and ST’s and then should take decisions on whether having reservations in promotions or not but again this was challenged in Supreme Court.
Understanding the gravity of the Situation with various Judgments
According to the judgment of Umedsinh P. Chavda vs. Union of India and Ors.[4] on 11th June 2020, here various parties from Tamil Nadu questioned the policies and rules of Central Government that consists no provision of giving reservations to other backward classes (OBC). The candidates directly filed their petition in Apex Court with the reference of Article 32 that the fundamental rights of OBC’s have been violated. In the reply or decision of the matter, Supreme Court said that reservation is not termed to be a fundamental right, though this petition mentions no value under Article 32 of the Constitution as Article 32 can only be used in the cases of violation of fundamental right. As the result, the bench of three judges headed by Justice L.N. Rao ordered the petitioners to take back their petitions.
The same happened in February 2020, when Apex Court observed similar circumstances again in the case Mukesh Kumar and Anr. vs. The State of Uttarakhand and Ors.[5] the case has the arguments from reserved category people or candidates put about the decision of the M. Nagraj vs. UOI[6] (2006) that the state’s government that is Uttarakhand Government denied for giving reservations to Scheduled Castes and Scheduled Tribes but about the above-mentioned case state is bound to provide reservations and this scenario is not well for the people at that particular time applying for the Government jobs. Deciding the dispute Supreme Court mentioned or cited the Judgment of Ajit Singh vs. The State of Punjab [7](1999), in the case, it was made clear by the court that Article 16(4) and 16(4A), doesn’t provide any right towards any promotion reservation.
Similar circumstances were dealt with in the case C.A. Rajendran vs. Union of India [8](1968) and within these, it was mentioned that courts will not order or interfere government to give reservations. In the case, M.R. Balaji vs. State of Mysore (1963)[9], Article 16 and 16(4A) are termed as enabling provisions and it will be under the hands of the state government to provide reservations if situations and circumstances like that arise. Although it was made clear by the courts that it will be in hands of government whether it wants to consider any committee report or not also if the State government decides to give any specific class reservation then they must collect all materialistic information that shows that particular caste has insufficiency in government jobs. If the bill is agreed upon by the members then the state has to put every fact in front of the court which can be trusted upon and from the verified source and speaks that a certain caste or section of society is facing insufficiency in specific posts and must be without distressing to general efficacy of administration as clearly mentioned in Article 335 of the Indian Constitution as well.
Courts clear this that and also given importance to article 16 and 16(4A) and states that these articles empowers state to secure reservations in all matters related to selection or recruitment in all public posts for SC’s and ST’s. It will be completely in hands of State government whether the selection and recruitment of public posts require reservations or not. It was made extremely clear by the Supreme Court of India that reservation is not a fundamental right so no one can claim it in the shadow of infringement of fundamental right nor court can issue a writ of Mandamus in cases like this.
Also, this was questioned that if the state doesn’t allow or give reservations then they must prove that there is satisfactory representation of every community. On this honorable Supreme Court said that state is not bound to provide certain reservations or not bound to showcase satisfactory data about involvement of every community it will totally upon the discretion of the state whether there’s representation of SC’s and ST’s in state services or not.
Focussing on the facts of Suresh Chand Gautam (2016) this was made clear by the court that no writ can be issued specifically mandamus against state to submit perceptible data containing adequate representation from ST’s and SC’s in public services.
Conclusion
Through several debates and discussions it has been clear that there are in all two reasons by which people interpret right to the reservation as a fundamental right which is, firstly people who say right to the reservation is a fundamental right relies upon two judgments as Jagdish Lal vs. State of Haryana and Ashok Kumar Gupta vs. State of U.P. [10]as in these cases it was observed that right to the reservation is a fundamental right. Secondly many believe that as article 16(4) comes in part 3 of the constitution which deals with fundamental rights, then we must consider the right to reservation as a fundamental right as well.
Taking both the arguments into consideration, in the case of Ajit Singh article articles as 16(4) and 16(4A) were mentioned and through various discussions termed as non-obstante clauses. It has been said that or through its interpretation, we’ll find that there’s a variance in the languages of article 16(1) on one side and article 16(4) and Article 16(4A), as there’s an ordering language in article16(1) but not in 16(4A) and 16(4), both of these are only principle-based provisions. For example, if it would have been written as “notwithstanding anything in this article, the state shall provide reservation”, in this case, we’ll consider the right to reservation as a fundamental right. Although it is a perception or maybe a fact that while pronouncing the verdict of Ajit Singh case[11], courts were not provided or fetched with verdicts of larger benches to the bench who had given verdict in Ashok Kumar Gupta [12]and Jagdish Lal. Though due to the destructive authority from 1963, both the articles 16(4) and 16(4A) does not imply any fundamental right nor do they impose any duty or obligation on states to provide reservations. Thus these two cases were referred to as per curium which certainly means something which does not lay down the regulation perfectly. Thus it is clear that the right to a reservation is not a fundamental right but this must be kept in mind that they can be understood as statutory or a legal right as in any case to support provisions of reservations any Act or rule of law can be used.
[1] “Implementation of Recommendations of Mandal Commission”. Parliament of India Retrieved 4 November 2011.
[2] “Challenge to reservation for economically poor”. Law Street, 20 February 2019.
[3] “Reservation of Seats”, UCEED.
[4] Umedsinh P. Chavda vs. Union of India and Ors. W.P. (C) No. 346/2020, 11th June 2020.
[5] Mukesh Kumar and Anr. vs. The State of Uttarakhand and Ors. Civil Appeal No. 1226 of 2020 [Arising out of S.L.P. (Civil) No. 23701 of 2019].
[6] M. Nagraj vs. UOI (2006) Writ Petition (civil) 61 of 2002.
[7] Ajit Singh vs. The State of Punjab (1999) (2) SCC 215.
[8] C. A. Rajendran vs. Union Of India & Ors on 29 September, 1967, 1968 AIR 507, 1968 SCR (1) 721.
[9] M. R. Balaji and Others vs. State of Mysore on 28 September, 1962 AIR 649, 1962 SCR Supl. (1) 439.
[10] Ashok Kumar Gupta, Vidya Sagar … vs. State of U.P. & Ors on 21 March, 1997.
[11] Supra note 7.
[12] Supra note 10.
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