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Insights into Editorial: A blow against social justice

 

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Context:

In a judgment delivered recently, the Supreme Court ruled that states are not legally bound to provide quotas to Scheduled Castes (SCs) and Scheduled Tribes (STs) in government jobs and held that individuals have no fundamental right to claim reservations in promotions. According to a report, the court gave the verdict during a case regarding the validity of  a 2012 notification by the Uttarakhand government to fill up vacancies in government jobs without giving reservation to the SC/ST communities. The Uttarakhand High Court had struck down the notification and asked the government to provide representation to the specified categories.

What did the Supreme Court say on reservation?

  1. The Supreme Court decision came against pleas regarding Uttarakhand government’s September 5, 2012 decision to fill up all posts in public services in the state without providing reservations to Scheduled Castes and Scheduled Tribes.
  2. The government’s decision was challenged in the Uttarakhand High Court, which struck it down.
  3. A Supreme Court bench of justices ruled that states are not bound to make reservations, nor is reservation in promotions a fundamental right.
  4. The top court said that it cannot order state governments to provide reservations.
  5. In view of the law laid down by this court, there is no doubt that the state government is not bound to make reservations.
  6. There is no fundamental right which inheres in an individual to claim reservation in promotions.
  7. No mandamus can be issued by the court directing the state government to provide reservations.
  8. The state governments can grant reservation to scheduled castes and scheduled tribes at their own discretion, but will have to collect quantifiable data which shows their inadequate representation in public services.
  9. The Supreme Court has said that states can grant reservation to certain classes, but “there must be some material on the basis of which the opinion is formed.

What does the constitution say?

  1. Article 16 of the Constitution pertains to matters of equality of opportunity in matters of public employment, while sub-sections 4 and 4A pertain to reservations to SCs/STs in appointments and reservations in promotions respectively.
  2. The Supreme Court referred to Article 16 and its clauses 4 and 4A while delivering its judgement in the matter.
  3. Article 16 in the Constitution of India refers to equality of opportunity in government jobs.
  4. Article 16 (4) states: “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.”
  5. Article 16 (4A), which was introduced in 1995, states: “Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.”
  6. To summarise, the Constitution of India grants state government the power to reserve vacancies for backward sections, and even grant reservation in matters of promotion for posts under it.
  7. This can be done if the state believes that the reserved categories are inadequately represented in public services under it. 

Really Administrative efficiency will be affected?

More importantly, this judgment has raised a new point — that the decision of the State government to provide reservation for SC/STs should not affect the efficiency of administration. This implies that the entry of SC/STs in the job market can reduce the quality of administration; this by itself is discriminatory. There is no evidence that performance in administration is affected on account of caste. There have been many attempts to dilute reservation in the past. But, this judgment appears to be debatable in the larger context and should be challenged in a constitutional bench.

Counter arguments:

  1. The object of reservation is to do away with sociocultural discrimination that SC/ST communities have faced for the past thousands of years.
  2. Even today, we see that many students from SC/ST communities who are not in financially disadvantaged position face systemic discrimination in prestigious public educational institutions.
  3. According to critics, It is unfortunate that the top court in the case of Mukesh Kumar & Anr. Vs The State of Uttarakhand & Ors has not even referred to this important judgement which recognised the criticality of reservation in promotions as a social necessity to arrive at the inclusive citizenship and participatory governance.

Conclusion:

In a country of parliamentary democracy, even the Constitution of India can be amended. The judgment says that the state will also have to justify its decision to provide reservations if challenged in a court of law. However, the state government also need to collect data when making provisions for reservation and not when the government decides not to provide quotas. If the government at the Centre has genuine concern for SC/STs, it can amend the Constitution using its political majority. If the argument is that it is not binding on the state to give reservation, it must be noted that when reservation rights are in Part III as Fundamental Rights, it is the obligation of the state to ensure reservation to the underprivileged. This judgment has interpreted Articles 16 (4) and 16(4A) only as enabling provisions. Enabling provisions mean that these provisions empower the state to intervene; it does not mean the state is not bound to provide it. Interpreting the Constitution by paraphrasing and selective reading is dangerous.