Reservation is not a fundamental right

Reservation is not a fundamental right

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Reservation is not a fundamental right
Reservation is not a fundamental right

Introduction

The caste system in India started with the advent of Aryans. They introduced the concept of purity, wherein they considered people with a dark complexion inferior. The caste system became deep-rooted and differences in upper and lower castes widened.

After independence, India decided to become a democracy. It guaranteed civil and political liberties to everyone. This included the right to equality, the right to vote, the right to freedom, etc. irrespective of caste. The aim was the upliftment of backward sections of society.

Ambedkar spearheaded the fight for reservation first in electoral seats during provincial elections. He wanted reservations in government employment, educational institutions, and every possible sphere. However, surprisingly, reservation is not a fundamental right.

Let’s explore this field through landmark judgments.

Reservation

Educational institutions

State of Madras vs. Champakaran Dorairajan

The Madras government, by order, reserved seats in government colleges. The government did so according to the numerical strength of students getting admission. The Supreme Court struck it down as it was violative of Article 15 (1).

1st Constitutional Amendment

It inserted Clause (4) into Article 15 of the Constitution in 1951. Special provisions for the advancement of backward classes made a way for reservations in educational institutions.

TM Pai Foundation vs. UOI and PA Inamdar vs. the State of Maharashtra

SC stated that the state cannot make reservations in private educational institutions.

93rd Constitutional Amendment

It inserted Clause (5) into Article 15 in 2005. This enabled the states to include private institutions under the reservation policy.

Promotions

Indra Sawhney v UOI

The Supreme Court did not grant reservations in promotions to SC/ST. It also included OBC in the reservation, excluding the creamy layer.

77th Constitutional Amendment

The government introduced Article 16 (4A), allowing states to provide reservations for SC/ST for promotion.

Ajit Singh vs. State of Punjab

Catch up rule

This would promote Reserved category employees faster as compared to their general counterparts. So a junior SC/ST promoted earlier, became senior to the general employee. SC held that if the promotion of general employees happens after SC/ST employees, will regain seniority.

81st Constitutional Amendment

Carry Forward Rule

The government introduced Article 16 (4B), allowing the state to carry forward unfilled vacancies from the previous year. This breached the ceiling of 50%.

82nd Constitutional Amendment

Proviso to Article 355

The article is about maintaining administrative efficiency while reserving seats. However, the state could negate it by relaxing qualifying marks for reservation for promotion.

85th Constitutional Amendment

Consequential Seniority

The Carry Forward rule ended. The new rule promoted a junior SC/ST employee earlier and general employee later them. But a general employee will not become senior after his promotion.

M. Nagraj vs. UOI

Petitioner challenged the previous 4 amendments in SC, but it upheld every amendment. SC allowed reservations for promotion, but with 3 conditions:

  • Demonstration of backwardness
  • Community is inadequately represented in relevant public employment
  • Maintain overall efficiency of administration

Jarnail Singh vs. Lacchmi Narain Gupta

The court introduced the creamy layer principle to reservations for SC/ST in promotions.

BK Pavitra vs. UOI

SC upheld the Karnataka Reservation Act, 2018 as the state had furnished sufficient data to demonstrate backwardness/inadequate representation.

Fundamental Rights

Those rights, are in violation of which a person can directly approach the Supreme Court or High Court. Articles 32 and 226 provide a remedy if there is a violation of fundamental rights.

Thus, if the state is not applying a reservation policy, a person cannot knock on the doors of the court.

Right to Reservation

Reservation is not a fundamental right. Rather, it is just a policy/tool to achieve equality and social justice.

Mukesh Kumar vs. the State of Uttarakhand

SC stated that the state is not bound to make reservations for SC/ST. It is the discretion of the state whether to reserve seats or not. If the state allows reservations, it has to do it on the backwardness criterion. The state has to prove that the category for which it makes a reservation, is inadequately represented.

Conclusion

Indians have fought for equal rights. Social justice is necessary for society/nation to grow. So, the state makes provisions for the upliftment of backward sections of society for wholesome development.

The reservation policy is one such instrument to achieve equality of opportunity. It is not a constitutional guarantee. It is wrong to consider reservations as an inviolable part of any fundamental right.

If still doubts persist, consult legal experts at

https://www.aapkaconsultant.com/legal-opinion-legal-shots

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