Reservation Rights or Not : What Supreme Court Said in its recent judgement?

Key Facts:-

1. Honorable Supreme Court in its recent judgment said that there is no fundamental right to claim reservation in promotion.

2. This Friday, a two-judge bench of the Supreme Court handed down a judgment holding that Article 16(4) of the Constitution is only an enabling provision, and does not confer a “right” to reservations. The context of the case was as follows: in 2012, the government of Uttarakhand decided to fill up the posts in the state’s public services without providing reservations to Scheduled Castes (SCs) and Scheduled Tribes (STs) . This was challenged, and after a round of litigation before the Uttarakhand High Court, that court directed “the State Government to collect quantifiable data regarding inadequacy of the representation of the Scheduled Castes and Scheduled Tribes in Government services which would enable the State Government to take a considered decision on providing or not providing reservation.” 

Appellants argued before the Supreme Court that the

judgment of the Uttarakhand High Court was wrong, as “there is no constitutional duty on the part of the State Government to provide reservations.” Once, therefore, the government had taken the decision (in 2012) not to provide reservations, that decision could not be challenged . Appellants further argued that as the collection of “quantifiable data” was a precursor to providing reservations, it followed ipso facto that “there is no necessity for collection of any quantifiable data after the Government has taken a decision not to provide reservations.” 

The Court agreed with these submissions, and also agreed with its 2016 judgment in Suresh Kumar Gautam v State of UP, where these contentions had been accepted. In  of the judgment, 

In other words, there was no obligation upon the State to collect data in order to deny reservations.

There are, however, two problems with this line of reasoning, that I set out below.

Article 16 and Substantive Equality

The first is the Court’s characterisation of Article 16(4) as a purely enabling provision, and its conclusion from that that inadequacy of representation is a matter within “the subjective satisfaction” of the State. This, however, is at odds with the scheme of Article 16 of the Constitution as interpreted by the Supreme Court. As readers of this blog will be aware, until the mid-1970s, the Supreme Court’s position was that Article 16(4) was an exception to the guarantee of equality of opportunity set out in Article 16(1). In other words, 16(4) carved out a space (for inadequately represented sections) where the normal principles of equality of opportunity would not apply. It was, of course, up to the State whether or not it chose to avail of this exception, and provide for reservations.

In NM Thomas, however, that position changed. It was held that Article 16(4) is not an exception to, but a facet of Article 16(1). That changed interpretation flowed from the Supreme Court’s evolving understanding that the Articles 14-15-16 “Equality Code” under the Constitution was not about bare formal equality, but about substantive equality – i.e., equality that took into account existing social and structural disadvantages, and required the State to remedy them. This understanding of constitutional substantive equality has never seriously been questioned after N.M. Thomas, and has recently been reaffirmed (albeit in the contexts of Articles 14 and 15) in Navtej Johar and Joseph Shine.

Consequently, if Article 16(4) is a facet of Article 16(1), then it necessarily follows that what Article 16(1) guarantees is a right to substantive equality of opportunity (and 16(4) is – in the words of NM Thomas – an “emphatic restatement of that right.” Consequently, while it is correct to say that there is no right to reservations (as the language of 16(4) is indeed enabling), there is a right to substantive equality. This, in turn, means that if the status quo involves formally equal treatment of individuals in substantively unequal circumstances – when it comes to appointments or promotions in public services – Article 16(1) is breached.

The Uttarakhand High Court was well aware of this distinction (as it also was in another judgment it delivered a few days later, which I discussed here). Consequently, it did not direct the government to provide reservations. What it did do was direct the government to collect data on inadequacy of representation, so that a decision could be taken on how to remedy existing substantive inequality. This – as Karan Lahiri has argued previously on the blog – is a reading of the scheme of Article 16 that places a “power plus duty” upon the government.