Is There A Fundamental Right To Reservations?
The time has now perhaps come for the Supreme Court to ask itself some difficult questions, writes Abhinav Chandrachud.
In February 2020, the Supreme Court decided a case that gives state governments arbitrary powers to withdraw all reservations for backward classes. In Mukesh Kumar v. State of Uttarakhand, the Supreme Court held that while a government has to collect “quantifiable data” justifying its decision to have reservations in favour of backward classes, it needs to carry out no such exercise if it decides to scrap reservations altogether. This judgment, which follows a long line of authorities, reveals the inherent contradictions in the law on reservations laid down by the Supreme Court.
Ambedkar’s Formula
Article 16(1) of the Constitution gives to every Indian citizen the fundamental right to equality of opportunity in employment with the government. Article 16(4) says that the government may, despite Article 16(1), reserve posts in favour of any “backward class of citizens” (i.e., Scheduled Castes, Scheduled Tribes and Other Backward Classes) which are not adequately represented in the services.
Ambedkar’s speech on this provision in the Constituent Assembly has had a profound impact on the manner in which it has been interpreted by the Supreme Court. On Nov. 30, 1948, Ambedkar stood up in the Constituent Assembly to respond to the criticism that the term “backward class” in Article 16 was vague. TT Krishnamachari, for instance, who later resigned as India’s finance minister after the Mundhra scandal, accused Ambedkar of preparing a Constitution that was a “paradise for lawyers”, one that would improve their “business prospects” on account of its many open-ended phrases.
Answering this accusation, Ambedkar said that the drafting committee of the Constitution had to “produce a formula” that reconciled three points of view when it came to government jobs:
- There should be equality of opportunity for all citizens;
- There should be “no reservations of any sort for any class or community at all”; and
- There should be reservations for “certain communities which have so far been outside the administration.”
Ambedkar argued that if reservations were too excessive, the first principle, of equality of opportunity, would be violated. To illustrate his point, Ambedkar said that if a government reserved 70% of the positions in government jobs, leaving only 30% for the general populace, then this would violate the principle “that there shall be equality of opportunity”. “Therefore”, he said, “the seats to be reserved…must be confined to a minority of seats.” He explained that reservations were an exception to the rule that there should be equality of opportunity in public employment and that the exception should not “eat up the rule altogether”.
Justice Subba Rao’s Dissent
Over the years, the Supreme Court used Ambedkar’s speech in the Constituent Assembly to create two rules concerning reservations:
Firstly, the court held that reservations cannot exceed 50% of all available posts. Since reservations were an exception to the principle of equality of opportunity, the exception would swallow the rule if a majority of seats were to be reserved for the backward classes.
Secondly, the court also said that there was no fundamental right to reservations. Citizens had a fundamental right to equality of opportunity. Reservations were an exception to this fundamental right. It, therefore, followed that if a government decided to scrap reservations, backward class citizens had no fundamental right to force the government to reinstate their quotas. In legal jargon, Article 16(4) of the Constitution was only an “enabling provision” according to the Supreme Court—it was not mandatory for a government to have reservations at all.
Then, something interesting happened. In 1963, one of the five judges hearing the case of T. Devadasan v. Union of India, Justice Subba Rao, dissented from the majority and held that reservations were not an exception but a part and parcel of the fundamental right to equality of opportunity. Disagreeing with Ambedkar’s view, Justice Subba Rao said that equality of opportunity was meaningless without reservations—those higher up in the social ladder would obviously do better than those lower down. The right to equality means nothing if unequals are treated equally, and reservations were a way of creating a level playing field.
Decades later, in 1992, a bench of nine judges of the Supreme Court, in Indra Sawhney v. Union of India, adopted Justice Subba Rao’s dissent, and said that reservations were not an exception but a component of the principle of equality of opportunity.
Inherent Contradictions
Contrary to Ambedkar’s speech in the Constituent Assembly, when the Supreme Court in Indra Sawhney’s case held that Article 16(4) was not an exception but a facet of equality of opportunity, two things ought to have logically followed.
Firstly, the court ought to have dispensed with the rule that reservations cannot exceed 50% of the available posts. The 50% rule has its basis in Ambedkar’s speech that reservations are an exception to equality of opportunity and must, therefore, extend only to a minority of seats. Once quotas cease to be an exception and become a part of equality, there can be no hard and fast rule that they can extend to no more than 50% of the available positions.
Secondly, if reservations are not an exception to equality of opportunity but a part of it, then it can no longer be said that there is no fundamental right to reservations. The fundamental right to equality of opportunity now includes Article 16(4), i.e., reservations. The government cannot arbitrarily refuse to have reservations, especially where a state has backward communities who are inadequately represented in public employment.
However, despite holding that reservations are not an exception to the principle of equality of opportunity, in case after case, the Supreme Court has continued to declare that reservations cannot exceed 50% of the available positions and that there is no fundamental right to quotas.
Mukesh Kumar Case
The Mukesh Kumar case is only one of the latest judgments in a long line of authorities where the Supreme Court has refused to extend the argument that reservations are not an exception to equality of opportunity to its logical conclusion.
Whenever a government wants to reserve jobs in favor of backward classes, it has to collect data on three questions:
- Are backward classes inadequately represented in government jobs?
- Will the efficiency of the department suffer if reservations are brought in?
- In the case of OBC reservation, are the OBCs in question actually backward?
The central issue in the Mukesh Kumar case was whether the state government had to carry out similar studies before deciding to scrap reservations in the state.
The Supreme Court held that there is no fundamental right to reservations and that therefore, the government of Uttarakhand was free to abolish backward class quotas in public employment without conducting any study. In other words, the Supreme Court held that while governments have to carry out detailed studies before introducing reservations, they need to do almost nothing before abolishing them. Even where a state has backward communities who are genuinely needy of assistance, and who are inadequately represented in public employment, the government has the unfettered discretion to scrap reservations without having any material to justify its decision.
The time has now perhaps come for the Supreme Court to ask itself some difficult questions: Are reservations an exception to the principle of equality of opportunity or not? If not, can the court continue to deny that there is a fundamental right to reservations?
Abhinav Chandrachud is an advocate at the Bombay High Court and the author of ‘Republic of Religion: The Rise and Fall of Colonial Secularism in India (Penguin 2020)’.
The views expressed here are those of the author and do not necessarily represent the views of BloombergQuint or its editorial team.