“It is for the State Government to decide whether reservations are required in the matter of appointment and promotions to public posts. The language in clauses (4) and (4-A) of Article 16 is clear, according to which, the inadequacy of representation is a matter within the subjective satisfaction of the State. The State can form its own opinion on the basis of the material it has in its possession already or it may gather such material through a Commission/Committee, person or authority. All that is required is that there must be some material on the basis of which the opinion is formed.”

This, however, was limited to situations where the State made provisions for reservation. That, however – the court held – was purely discretionary. Consequently:

“As the Government is not bound to provide reservation in promotions, we are of the opinion that there is no justifiable reason for the High Court to have declared the proceeding dated 05.09.2012 as illegal.” ( paragraph 15 )

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“… a constitutional provision conferring power/discretion on a State authority, couched in permissive language, is to be treated as a provision containing a power coupled with a duty, if the failure or conscious omission on the part of such authority to act would nullify the effect of another/other constitutional provision, or render nugatory a constitutional principle emerging from a mosaic of constitutional provisions.”

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“There is a hurdle created to pull up backward groups, but none for pulling them down, or for ignoring them entirely. This, I believe, is inconsistent with the equality code of our Constitution, and Article 16 itself contains no textual basis for such asymmetry. It is this asymmetry problem that can be remedied if the Supreme Court recognises the fact that Article 16 contains within it an enabling power coupled with a positive duty.”

Notice that the asymmetry problem is taken care of by NM Thomas’ reading of Article 16: Because that reading makes the pulling up of “backward groups” an obligation upon the State. On the Supreme Court’s reading, however, it is made explicit that the government must collect data if it wants to provide reservations/substantive equality (“pull up”), but is not obligated to do any such thing if it wants to deny reservations/substantive equality (“pull down/ignore”). This is obviously at variance with the constitutional scheme.

the State is empowered to decide upon reservations, but it has a duty to collect information pertinent to that decision.

Any other reading would defeat the basic idea of substantive equality under Article 16(1).

Supreme Court’s Judgment on Reservations at Odds With Equality?

On Friday, 7 February, 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) (paragraph 5).

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.” (paragraph 7)

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Supreme Court’s Judgment on Reservations at Odds With Equality?

The court says states can decide not to give reservations without first assessing if there is a need for the same.

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Topics: Supreme Court Reservations Equality