RESERVATION IN PROMOTIONS IS NOT A FUNDAMENTAL RIGHT

Asmita Kuvalekar | Government Law College, Mumbai | 12^th March 2020

MUKESH KUMAR AND ANR. VS. STATE OF UTTARAKHAND AND OS

FACTS OF THE CASE: 

Arising out of several judgements passed by the High Court of Uttarakhand, this case collectively disposes of appeals filed thereby and significantly reiterates the settled law regarding Article 16 of the Indian Constitution. Pertaining to promotions for the post of Assistant Engineer (Civil) in the Uttarakhand Public Works Department, the High Court directed the State to carry out research for quantifiable data so as to make an educated decision regarding reservations. The reserved category candidates argue that such a direction is valid while the wording of Article 16 is taken by the Government to confer discretion on the Executive. With respect to various past decisions of the Supreme Court, the legal tenability of compulsory reservation in jobs and promotions is once again brought to the fore. The arguments put forward in this case highlight the divide between the State’s constitutional duty of providing equal opportunity under Article 16 and the power of giving reservations under Article 16 (4) and 16 (4-A).

ISSUE:

1. Is reservation a Fundamental Right? 
2. What is the nature of the power given to the State under Article 16? 
3. Whether Courts can direct the Executive to make reservations for the SC, ST, OBCs? 
4. Is quantifiable data a necessary prerequisite before the Executive denies reservation? 

JUDGEMENT:

With recourse to Indra Sawhney v. Union of India^1, Ajit Singh (II) v. State of Punjab², M. Nagaraj and Os³ and Jarnail Singh v. Lachhmi Narain Gupta⁴, the Apex Court clarified that reservation under Article 16 of the Indian Constitution is not a fundamental right but is a mere “enabling provision”. The term ‘enabling provision’ refers to a legal enactment with persuasive value; conferring upon the State the power to take necessary measures, reservation in this case, to bridge social inequality.  

The framing of Article 16 (4) and 16 (4-A) clearly leave the granting of reservation to the satisfaction of the Executive. It follows therefore that Article 16 affords an important albeit discretionary power to the Executive to make reservations. In other words, the State is not duty bound in this regard and Article 16 cannot be enforced as a Fundamental Right. 

It was also held that, by its order dated 01.04.2019, the High Court committed a grave error by striking down a notification denying reservations made by the Government of Uttarakhand. Given the character of the State’s power as explained above, no Court can demand justification from a Government if reservations are not made and any intervention thereby cannot be legally upheld.

However, having realized its error, in a subsequent proceeding, the High Court modified its stance on the issue and went on to direct the State Government to produce quantifiable data to make an educated decision on whether or not to give reservations. This direction being a point of contention in the present case, the Supreme Court relied upon Suresh Chand Gautam v. State of U.P.⁵ and declared that Courts have no power to compel States to provide reservation. Neither do they have the authority to ask the State to collect data for making a decision thereby. 

The only situation that requires quantifiable data to be compulsorily collected is when the Government takes a decision to grant reservation and not otherwise. This is done so that if at all such a decision is challenged, the Court could call for data that justifies the reservation. To summarize, backwardness requiring reservation has to be proved by data but adequate representation is presumed when reservations are not made. Additionally, once data is collected to grant reservations, the Court may concur or use its power under Judicial Review to scrutinize such decisions but there is no case made out for a Court induced mandate on the State.

Thus, in light of the nature and character of Article 16, the Supreme Court upheld the well-settled law that reservation in jobs and promotions cannot be enforced against the State and the decision to grant or deny the same vests entirely in the Executive. In consonance thereof, Courts have no authority to direct the State to carry out research for quantifiable data. Nor can it compel the State to reserve seats i.e. a Mandamus cannot be issued against the Executive in this regard.