The Supreme Court judgement last Friday on reservations in government service is problematic because it might provide an excuse to governments to deny reservations to SCs, STs, OBCs and other sections which are entitled to them. The root of the current issue lies in the then Congress government’s decision to give up SC/ST quotas in promotions in Uttarakhand. A two-judge bench of the court ruled that reservation is not a fundamental right and the government is not constitutionally bound to provide quotas in appointments and promotions to sections which are considered eligible for them. The court based its ruling on a reading of Article 16(4) and 16(4A) which tells the State to provide reservations to SCs, STs, etc., “if in its opinion, they are not adequately represented in the services.’’ The court takes this to be a provision that enables governments to decide on reservations on the basis of their idea or perception of adequate representation in services. One is left wondering if this was the result of inadequate reading of the provision. The court gave the verdict in an appeal against an Uttarakhand High Court order which had struck down a state government decision in 2012 to fill all vacancies in a department without reservations. The state government’s position was that clauses 4 and 4(A) of Article 16, which guarantees equality of opportunity to all citizens, gave it the discretion to decide on reservations. But the decision on reservations should not depend on the subjective satisfaction of the State about the adequacy of representation.
The government has the duty to back up its decision on reservation with adequate data on representation. Otherwise, its decision is bound to be arbitrary. According to the judgement, the government is not bound to collect data in order to deny reservations. This will give an opportunity to a government, which is against reservations, to deny reservations and then claim that it does not have to justify its denial with any facts and data about representation. Reservations should not be considered as an exception to the right to equality of opportunity under Article 16. The Supreme Court has made this clear in various judgements and has tended to see the reservation provision as a facet of equality of opportunity. A problem is the question whether the exclusion of the advanced sections among SC/ST candidates can be disallowed only for promotions. Most of them may not fall under the ‘creamy layer’ category at the entry level, but after some years of service and promotions, they may reach an income level at which they fall under the ‘creamy layer’.
Reservation is a device to give equal opportunity to unequals, and the fundamental right is meaningless if it treats unequals equally. What the Article and its clauses envisage is not a formal equality but substantive equality between unequal citizens. The court’s latest judgement enjoins on governments to collect data on representation if they want to provide reservation but does not give them the responsibility to collect such data if they want to deny reservations. Governments are likely to misuse this power to take arbitrary decisions and so the judgement needs to be reviewed and corrected.