By Soma Mandal
In the wake of the recent judgements on reservation, particularly in the Uttarakhand verdict, Mukesh Kumar vs The State of Uttarakhand on 7 February 2020, and in the case of writ petition by various political parties DMK (AIDMK, CPI (M) and Tamil Nadu Government) vs Union of India demanding reservation in state medical seats for the OBCs, the Supreme Court Bench presided over by Justices L. Nageswara Rao and Hemant Kumar concurred unilaterally, “Right to reservation is not a fundamental right. That’s the law today.”
While the Uttarakhand verdict by the Supreme Court was on the matter relating to banning reservation in promotion to SC, ST, and OBCs, in the post of Assistant (Civil) Engineer in Public Works Department in the state of Uttarakhand, the judgement’s unwarranted intrusion to limit the scope of reservation for SC, ST and OBCs in matters of appointment, employment and reservation goes against the envisioned social justice objective of the constitution.
The court as the enforcement agency for the rule of law mandated in the Constitution knows very well that although reservation has not been declared outright as a fundamental right, it is nonetheless, a fundamentally integral part of the Indian constitution. Part III of the constitution that allows certain fundamental rights to Indian citizens, by an extension of that virtue expands under Article 14-18 as Right to equality. Article 15 prohibits “discrimination on grounds of religion, race, caste, sex, place of birth”; Article 16 advocates, “Equality of opportunity in matters of public employment”; and Article 17 states, “Abolition of untouchability and prohibition of its practice”, thus bearing direct corollary to the due process of reservation mentioned in articles 15(4), 16(4), 16(4-A) and Articles 330-342 in Part XVI of the constitution.
The Supreme Court’s selective use of words to repeal the earlier existing precedents – “No mandamus can be issued by the Court directing the state government to provide reservations”, “no fundamental right inheres in an individual to claim reservation in promotions”, “it is settled law the state cannot be directed to provide reservations for appointment in public posts”, and “the state is not bound to make reservation for SCs/STs in matters of promotions” – is in direct contravention to the expansionist understanding of the living tree doctrine. The application of the constitutional laws to achieve the objectives promised in the Preamble notwithstanding any definite time-period embodies the finesse and flow of the written statutes into living praxis in this regard.
The Court’s observation that seventy 70 years of Independence as sufficient time for the achievement of the said purpose quite ironically reflects the casteist bias of the judges and the learned counsels. That seventy years of governance was tolerant to reservation processes ideally meant for the upliftment of the lower classes had been indeed a phenomenal achievement. It matters little how much and to what extent these Backward Classes have progressed and that they have not been able to do so despite the opportunities, makes indictment against reservation more severe, vicious and loud. The negative choice of words to categorise reservation as a constitutional discretion also trivializes to a great extent the violent history of the caste system against the socially and educationally backwards classes. Its unreasoned declaration that whatever may have existed will no longer exist depending upon the current scenario disparages the convention of social justice upheld by the framers of the constitution. Anti-reservationist positions combine a strange blend of advocacy for inclusion of the economically weak not recognised under the term ‘Backward classes’ and support for the exclusion of lower caste people from the purview of reservation, given that seventy years had been sufficient to realize the intention behind this provision of social privilege. Its stance is, therefore, problematic, given that the continuing relevance of reservation is recognized and refuted, imagined and countered, vilified, abused and befriended in a manner inconsistent with the principles underlying the reservation process.
Part III of the Indian constitution has been declared as the Magna Carta of the Constitution and rightly so, given the power invested in the fundamental rights to check executive and legislative powers of the government. In the context of reservation, Clause 15 (14) states “nothing in the Article 15 or clause 2 of the article 29 shall prevent the state from making special provisions for the advancement of the citizens who belong to Socially and Educationally Backward Classes, Scheduled Castes and Scheduled Tribes.” Further 15 (5) was added by the 93rd Constitutional Amendment Act, 2005 which Sonia Gandhi recently invoked urging the Centre to provide reservation to the OBCs in-state/UT medical and dental colleges under the All India Quota (AIQ) that is only centrally reserved for the OBCs. Clause 5 extends the scope of reservation in admission to private educational institutions as well. Article 16(4) states that “the state can make special provisions for reservation in employment to any backward class of citizens who in the opinion of the state are inadequately represented in the services under the state.” And finally, Clause 16 (4A) observes, “the state can make special provisions for reservation in promotion with consequential seniority to any class or classes of posts under the state to Scheduled Castes and Scheduled Tribes which in the opinion of the state are inadequately represented in the services under the state.” This clause has been contested in the Indra Sawhney case in 1992, more popularly known as the Mandal Commission judgement.
In the order by the Uttarakhand government to not implement reservation in the state, senior learned counsels Mr Ranjit Kumar, Mr Mukul Rohtagi and Mr P.S Narasimha concurred, “there is no fundamental right to claim reservation in appointments or promotions to public posts. There is no Constitutional duty on the part of the state government to provide reservations. Article 16(4) and 16(4-A) are merely enabling provisions. (Henceforth) on 15 September 2012, the State of Uttarakhand, after due consideration, decided that there shall be no reservation in promotions. They relied upon the judgement of the High Court of Uttarakhand in Vinod Prakash Nautiyal (supra) by which section 3(7) of the 1994 Act was declared unconstitutional.”
The logical reasoning substantiated by the counsels argued in favour of the anti-reservationist stand, “It was urged by the learned senior counsel that there is no necessity for collection of any quantifiable data after the government has taken a decision not to provide reservation. The collection of data, according to them, is required only to justify a decision to provide reservation.”
The collection of adequate data to fill the required quota in reservation currently provided at 15, 7.5 and 27 percent to SC, ST and OBC not exceeding the 50 percent limit proposed in the Indra Sawhney case has been constitutionally recognized. However, the mode and method of the collection have been quite disputable given that pre-conceived biases routinely reflect in the formulation of these data structures. Further, the proposition that collection of data is not necessary in cases not providing reservation is subject to error in judgement as pre-determined and authoritative presumptions vaguely inform such decisions that there has been an adequate representation of the backward class, thereby not necessitating collection of quantifiable data. Instead, following the due course of timely collection of data could have facilitated the call for or rejection of the reservation process. In this case, the Uttarakhand government’s order to not collect data as it was not providing reservation in promotion borders on the assumption that reservation was either not necessary or already not practiced in the state. Admittedly, the absence of proper data on the dismal condition of lower caste and the reality of upper caste domination across education, employment and access to services runs in favour of the upper-caste dominance in the community.
The Supreme Court, as the watchdog of the Constitution and as a judicial activist should reclaim the indignity suffered by the lower caste citizens by rightfully observing reservation as a unique process for the historically oppressed. The Supreme Court can decisively choose to make an incisive point in this affirmative direction given that justice takes time to undo historical wrongs.
Cases Cited:
Vinod Prakash Nautiyal vs State of Uttarakhand (2012)
Mukesh Kumar & Anr. Versus The State of Uttarakhand & Ors (2020) : WP(Civil) 1226 of 2020
Indra Sawhney Etc. vs Union Of India And Others, Etc. (1992): AIR 1993 SC 477, 1992 Supp 2 SCR 454 https://indiankanoon.org/doc/1363234/
DMK vs Union of India (2020)
Bio:
Soma Mandal is an academic scholar. She can be reached at somamandal108@gmail.com
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