Reservation fufils demand of substantive equality under Article 16(1) of Constitution; states duty-bound to offer it to disadvantaged groups

The Supreme Court of India recently ruled that states are not legally bound to provide reservation to Scheduled Castes and Scheduled Tribes in government jobs.

In its decision last week on Friday, the top court also stated that individuals do not have a fundamental right to claim reservation in promotions. The ruling came against a Uttarakhand High Court order where the apex observed that “In view of the law laid down by this court, there is no doubt that the state government is not bound to make reservations. There is no fundamental right which inheres in an individual to claim reservation in promotions. No mandamus can be issued by the court directing the state government to provide reservations," the bench said in its order.

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. 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".

The ruling of the court has irked political parties and leaders across the political spectrum. Now the question is whether there is a right to reservation under the constitutional framework as it stands currently. Article 16(4) of the Constitution says that 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. The court reasoned that since the provision is just an enabling provision it doesn’t impose a duty on the government to provide reservation in all cases.

Affirmative action as an aspect of substantive equality

It is a well-established principle under constitutional law that reservation is not an exception to the right to formal equality but an aspect of formal equality which takes into consideration the existing inequality in the society and seeks to alleviate the disparity.

In BK Pavitra versus Union of India, the Supreme Court held that "for equality to be truly effective or substantive, the principle must recognise existing inequalities in society to overcome them. Reservations are thus not an exception to the rule of equality of opportunity. They are rather the true fulfilment of effective and substantive equality by accounting for the structural conditions into which people are born".

It is also an aspect of transformative constitutionalism which seeks to remedy the past injustices. Transformative aspect is not just a doctrinal aspect of the Constitution but a dialogical response to historical realities which shaped the very foundation of the Constitution. The concept of 'transformative constitutionalism' is ingrained in the Preamble of the Constitution of India and manifested in the chapter on fundamental rights. It reflects a value held by the Constitution which must always be taken into consideration in case of conflict. The ideal reflected in the Preamble and Part III of the Constitution amply reflects the constitutional ambition of transformation of society as a fundamental purpose of the manuscript.

In the Preamble, the Constitution recognises India's past of injustices that left the country a legacy of vast inequality and social inequity. It bravely declares its supremacy and its object, which is to usher in a system based on democratic values, social justice and fundamental human rights and it most crucially holds itself to be the foundation upon which such a society is to be realised. Hence, Article 15(4) and 16(4) serves the purpose of protection from social injustices and all forms of exploitation and also the redressal of past injustices and exploitation at the same time.

In India, the aim has been to provide support to the oppressed classes and castes as a means to improve and expand their social and economic positions, as well as, to ensure democratic participation in all societal activities, to overcome historic patterns of discrimination and backwardness and to make up for centuries of injustice and oppression.

Caste is a unique feature of the Indian society determining the allocation of resources and power structures for centuries. It is a rigid, immobile and birth-scribed system of social stratification not paralleled by any other institution in the world in terms of complexity, inflexibility and elaboration. The caste system perpetrated discrimination of a certain section of the society while giving privileges to another certain section, especially Brahmins and Kshatriyas.

Substantive equality under Constitutional framework

As Justice Chandrachud noted in the Sabarimala case, reading Dr Ambedkar compels us to look at the other side of the independence movement.

Besides the Struggle for Independence from the British Rule, there was another struggle going on for centuries and continues even today. That struggle has been for social emancipation.

It has been the struggle for the replacement of an unequal social order. It has been a fight for undoing historical injustices and for righting fundamental wrongs with fundamental rights. The Constitution of India is the end product of both these struggles. It is the foundational document, which in text and spirit, aims at social transformation namely, the creation and preservation of equal social order. The Constitution represents the aspirations of those, who were denied the basic ingredients of a dignified existence.

In the case of NALSA versus Union of India, the Supreme Court had addressed the issue of the disadvantaged position of the transgender community and directed the government to take affirmative action measures under Article 16 validating the demand of substantive equality under Article 16(1). Hence, reservation under Constitution is an aspect of substantive equality which imposes a duty on states to provide it for those groups who are disadvantaged in different terms.

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Jeba Mondal