Right to reservation

It has often been stated by various Indian Courts that Articles 15(4) and 16(4) do not guarantee a fundamental right to reservation and are merely enabling provisions. However, the march of law includes a number of cases where views to the contrary have been expressed. 

In M. R. Balaji v. State of Mysore[1], Gajendragadkar, J. observed that Article 15(4), like Article 16(4) was in the nature of an enabling provision and imposed no positive obligation on the State. This, however, did not constitute the ratio decidendi of the judgment.

One of the first cases in which it was laid down as part of the ratio decidendi, that Article 16(4) does not grant a fundamental right to the backward classes is C.A. Rajendran v. Union of India[2] .A petition was filed under Article 32 praying for the issue of writ quashing an Office Memorandum providing for no reservation for Scheduled Castes (SCs) and Schedule Tribes (STs) in post filled by promotion. The Court rejected the petition and one of the grounds for doing so was that Art. 16(4) was merely an enabling provision and did not confer any right on the petitioner and there is no constitutional duty imposed on the Government to make a reservation for SCs and STs, either at the initial stage of recruitment or at the stage of promotion.

In P. and T. Scheduled Caste/Tribe Employees’ Welfare Association (Regd.) v. Union of India[3], the withdrawal of reservations for SCs and STs in the Posts and Telegraphs Department pursuant to an agreement between the Ministry of Communications and certain associations of employees, was challenged by beneficiaries of the reservation. The Supreme Court held that while there was no right to reservation, in the present case the State action was discriminatory as the SCs and STs working in the Posts and Telegraphs Department were discriminated against when compared with SCs and STs holding similar posts in other Government departments.. Moreover, they were discriminated against vis a vis those SC and ST beneficiaries, who had availed of reservations prior to withdrawal of the same.

However there exist case laws to the contrary. These are primarily based on Comptroller and Auditor-general of India, Gian Prakash, New Delhi v. K.S. Jagannathan[4] where a relaxation of minimum qualifying marks for SCs was prayed for by an SC candidate and ordered by the Court. This amounted to stating that there was a right guaranteed by Article 16(4) that could be claimed by backward classes.

This ratio was followed in Superintending Engineer, Public Health, U. T. Chandigarh v. Kuldeep Singh[5]. The respondent had, before the Tribunal, challenged the promotion of another candidate ahead of him. The Respondent was a SC candidate and claimed that pursuant to the rule which stated that in the absence of any ST candidate the vacancy could be filled by an SC candidate, he ought to have been considered in the ST quota. The Tribunal accepted the contention and allowed the petition. It was argued by the Petitioners that the Rules stated that if there were no SC or ST candidate the vacancy would be carried forward for three years and then it would lapse. In the present case, it had lapsed.

However, the Supreme Court laid down that there was a constitutional duty on the Petitioners to implement reservations as it was a case of power coupled with constitutional duty.

A similar approach was adopted in Jagdish Lal v. State of Haryana[6] and Ashok Kumar Gupta v. State of U. P.[7].

All the above cases were considered in Ajit Singh v. State of Punjab[8] where it was contended that Article 16(4) conferred a power and a duty and it would be possible to enforce this duty by filing a writ of mandamus. However, the Supreme Court rejected this contention.

 It was held that Comptroller and Auditor-general of India, Gian Prakash, New Delhi v. K.S. Jagannathan[9] and Superintending Engineer, Public Health, U. T. Chandigarh v. Kuldeep Singh[10] had been decided without any reference to earlier decided precedents and was per incurium. The Supreme Court looked at the phrase  “Nothing in this Article shall prevent the State from making any provision for reservation. . . . . .”, used in Article 16(4) and noted that the language was very different from Article 16(1). The former did not contain a directive or command like the latter, and this indicated that Article 16(4) was merely an enabling provision that granted no right to reservation. This view was again reiterated in Dr. Gulshan Prakash v. State of Haryana[11].

 This decision may require reconsideration. While the wording of Article 16(4) does not grant a positive right to reservation, there exists a positive right to substantive equality guaranteed by Article 14. Even though fundamental rights are generally negative in nature, i.e. they do not require any positive actions from the State for their guarantee, there are certain rights that would automatically stand violated by State inaction. One example of this would be the “right to road in hilly areas”, which was held to be part of Article 21 in State of HP v. Umed Ram [12]. If the State did not build roads in hilly areas, there would be a violation of this right.

Another such right is the right to substantive equality guaranteed by Article 14. This right postulates that unequals should be treated unequally. State inaction would amount to unequals being treated equally. Hence there is a positive obligation on the State to treat the backward classes more favourably. The State has the discretion to decide in what manner the backward classes should be treated more favourably and an action exercised in favour of this discretion cannot be questioned on the ground that it is insufficient. However, failure to exercise this discretion would amount to violation of the right to substantive equality.

 (For an interesting discussion on this topic read M.P. Singh, “Are Articles 16(4) or 15(4) Fundamental Rights?” and Parmanand Singh, “Fundamental Right to Reservation: A Rejoinder”)

 (Also note that the cases on this issue are not exhaustive. For a more exhaustive discussion refer to Anirudh Krishnan and Harini Sudersan, “The Law of Reservation and Anti-discrimination: With Special Emphasis on Education and Employment”, ed. 2008, LexisNexis Butterworths Wadhwa Nagpur)

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[1] AIR 1963 SC 649. See also K.N.Chandra Shekara v State of Mysore, AIR 1963 Mys 292, B.S.Kesava Iyengar v. State of Mysore, AIR 1956 Mys 20, Prayag Das v. Civil Judge, AIR 1974 All 135.

[2] AIR 1968 SC 507. See also State Bank of India Scheduled Caste / Tribe Employees Welfare Association v. State Bank of India AIR 1996 SC 1838.

[3] AIR 1989 SC 139

[4] AIR 1987 SC 537.

[5] AIR 1997 SC 2133

[6] AIR 1997 SC 2366

[7] (1997) 5 SCC 201

[8] AIR 1999 SC 3471.

[9] AIR 1987 SC 537.

[10] AIR 1997 SC 2133

[11] (2010) 1 SCC 477

[12] AIR1986 SC 847.