Today the word Reservation is in the news because the Supreme Court of India said that ‘Reservation is not a Fundamental Right’ and refused to act on the petition filed by the political parties of TamilNadu asking 50% OBC reservation in NEET examination. As the petition was filed under article 32 the court refused to entertain the petition and asked petitioners to withdraw it and move to Madras High Court.
What is fundamental right?
Fundamental rights are the basic civil rights of every citizen as defined under part 3 (article 12-35) of the constitution and categorized as:
- Right to freedom
- Right to equality
- Right against exploitation
- Right to freedom of religion
- Cultural and Educational Rights
- Right to Constitutional Remedies
Some Legal Facts about the Reservation in India:
- Article 15(4) and 16(4) of the constitution empower the state and central government to reserve seats for the members of backward classes.
- Article 15(4) states that ‘Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes’
This article was added in our constitution by 1st constitutional amendment 1951 after the case of Champakam Dorairajan vs state of madras. In this case it was sought that the reservation in admission was the violation of fundamental right. The state in response quoted article 46. So The conflict was between article 16(2) of part 3 and part 4 of Indian constitution. Article 16(2) says that:
No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
And article 46 says:
The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.
The supreme court in this case held that in conflict between part 3 and part 4 of constitution, the part 3 shall prevail.
- Article 16(4) states that –
‘Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State’
This article was interpreted in the case of Indra Sawhney vs Union of India (Mandal case) and was held that reservation of appointment under Article 16 (4) of the constitution is confined to initial appointments and does not extend to the matter of promotion.
- After that, a new clause (4A) was inserted in article 16 through the 77th amendment 1995. Article 16 (4A) states that –
‘Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favor of Scheduled Castes and the Scheduled Tribes which in the opinion of State are not adequately represented in the services under the State.’
In 2006 article 16 (4A) was challenged in M. Nagraj vs union of India and was held article 16 (4A) constitutional and added three conditions for reservation in promotion ’that state would have to demonstrate backwardness, the inadequacy of representation and maintenance of efficiency. This judgment was challenged in Jarnail Singh vs Lacchmi Narain Gupta in 2018. Supreme court in this case held that the state needs not to demonstrate backwardness and maintenance of efficiency. However, the state will have to back it with data to show their inadequate representation in the cadre.
Authored By: Yuvraj Singh