WHETHER RESERVATION MUST BE TREATED AS A FUNDAMENTAL RIGHT OR MERELY AS AN ENABLING PROVISION

THIS ARTICLE WAS WRITTEN BY  APURVA MITTAL A STUDENT OF JINDAL GLOBAL LAW SCHOOL.

INTRODUCTION

The subject of reservations in India is an enormous issue, especially when its historical progress and critique is carefully taken into account.The word ‘reservation’ has been the most misunderstood and even a mythical concept where a stereotypical belief breeds that if one supports the implementation of reservation, then he/she is a casteist or has an insatiability for votes. On the contrary, an opposer of reservations is the one who is free from casteist considerations. But with course of time, a next level dialog or rather a debate  that has emerged is upon the issue of whether reservations must be treated as a fundamental right or merely a enabling provision.

This paper on constitutional law has been divided into segments where the first segment will primarily distinguish between what happens to a law or a provision when it is dealt with as a fundamental right and when it is considered within the ambit of an enabling provision. The next segment advances a debate between two recognised scholars of constitutional law- M.P.Singh and Parmanand Singh keeping into the loop the judicial discourse of the Courts in the treatment given to reservations along with a parallel drawn with many other related things and facts which are assumed to be relevant and hence worthy of being discussed. Thirdly, the paper would briefly introduce the author’s opinion and the (fundamental) reasoning so supported.

1. FUNDAMENTAL RIGHT V. ENABLING PROVISION

Fundamental rights embodied in the Part III of the Indian Constitution are safeguarded in a way that any tendency on the part of the Executive that in any conceivable way abridges them without an adequately sufficient social justification, has to be resisted. Having a fundamental right enables a person to move to Courts in case there arises any infringement with regards to them with an absolute right to ask for it. These are the rights guaranteed by the Constitution of India and no law can be formulated that violate the provisions of the Constitution. Thus, no law can be brought into force that disregards a fundamental right of the citizen.

On the off chance that reservation are brought under the umbrella of fundamental rights then the classes fulfilling the criteria of being “backward” enough can go up to the Court of Law and demand reservation if and ever denied.

On the other hand, an enabling provision could be said to be a section or a statute that gives an option/choice to the government official to place it into power and usage. Be that as it may, it is not something ensured by the Constitution where non-fulfilment amounts to a legal claim or an action.

• STATUS OF RESERVATIONS IN REGARDS TO THE DEBATE BETWEEN M.P.SINGH AND PARMANANDSINGH

The two highly intellectual scholars in the field of Constitutional Law have been in a continuous tussle in determining whether reservation should be considered as a fundamental right or as an enabling provision. What makes it interesting are the contrary stands taken up by both and the way in which they have been counter argued. This section of the paper advances the above mentioned contentions from either sides accompanied with certain extra pieces of relevant facts, observations and legal viewpoints.

M.P.SINGH

Mahenendra P. Singh in his article- Are Articles 15(4) and 16(4) Fundamental Rights takes up his stand on the issue and with deep understanding writes about why he thinks that Articles 15(4) and 16(4) i.e. Article that provide for reservations for backward classes, must be treated as FundamentalRights. The tone used by M.P.Singh in his article when he says “Article 15(4) and 16(4), no doubt, fall within Part III of the Constitution comprising of the Fundamental Rights” indicates his clear opinion upon the treatment of reservations as a fundamental right. He begins by discussing whether Articles 15(4) and 16(4) are exceptions to other provisions of those Articles or not. The initial verdicts of the Supreme Court where in the case of M.R.Balaji v. State of Mysore, 1963, the Court stated that the above mentioned clauses are definitely exceptions to the others clauses in those articles has been used as a starting point of the discussion and further he divulges into the pool of cases to substantiate and discuss how he has reached to a conclusion.

The above mentioned verdict continued to hold relevance till the time the judges weren’t confronted with State of Kerala v. N.M.Thomas in which Subba Rao’s lone dissenting voice was heard by a seven judge bench entirely repudiating the established precedent. It was a case equivalent to Keshavananda Bharti and the Menaka Gandhi case in term of its constitutional understanding. Along with presenting a fresh view on reservations, it transformed the deep foundations of the idea of equality that the Indian Constitution commits to it citizens.

M.P.Singh further contends that Art. 15(4) and 16(4) are not exceptions but are facets of equality of opportunity which is indeed promised in clauses (1) and (2) and are as much a fundamental right as other clauses.

In the next part of the article,M.P.Singh takes up a ‘N.M.Thomas view’ where he says that Article 14 should be interpreted in a way that suggests that it is not a right to uniform or identical treatment. It is a right to be treated equals among equals. Treating unequal equally would amount to the violation of a Fundamental right. Drawing a parallel between the two viewpoints, Chief Justice Ray in N.M.Thomas can be aptly stated:

“The rule of differentiating is enacting laws differentiating between different persons or things in different circumstances. The circumstances which govern or set of persons or objects may not necessarily be the same as those governing another set of persons or objects so that the questions of unequal treatment does not really arise between persons governed by different conditions and different sets of circumstances.”

Fully adopting the group-subordination idea of equality, M.P.Singh in tune with the N.M.Thomas and Indra Sawhney Court laid special emphasis on the perception  that Article 16(1) contains within its own scope the remedial action to ensure due representation for the backward classes.

Then very cleverly playing with the language of Article 15, M.P.Singh propounds that the State is prohibited from ‘discriminating’ on the basis of caste, sex, religion, race etc and not from treating them differently. Discrimination takes place when one is kept on a primary stature leading to a disrespect for the others.Reservation merely makes sure that the unequal share brought to. Level that they become equivalent to the forward class with no disrespect or prejudice against the non-reserved categories. Thus, 15(4) ensures that the equality promised by 15(1) is delivered to unequal so as to make them equals and cannot be termed as discriminatory or arbitrary.

Deriving support from the Directive Principles, he states that subsequent to the pressure on enforcing the Directive Principles, the Courts have been tilting towards them. It is believed that a harmonious functioning of both Fundamental Rights and Directive Principles constitute the basic structure of the Constitution. Here, drawing from KesavanandaBharti, if something reaches up to a level that it can be called as embedded in the basic structure, then it cannot be violated.

Directive principles may not be justiciable by themselves but when orchestrated with Fundamental Principles, can turn out to be so. Article 46 read. Along articles 15(4) and 16(4), makes a strong case for considering these rights for SCs and STs as fundamental rights.

Towards  the end he likewise utilises the principle of deduction and reasoning where he says that if Article 21which was negative in nature brought forth a positive right then Articles 15 and 16 can definitely empower the backward classes with such a privileged right.

Further, while acknowledging the justifiability of the aforementioned two articles, M.P. Singh notices the two case laws – P&T ST/SC Employees Welfare Association v. Union of India, 1988 and Joy Kanta Hira v. State of Assam, in reaching an inference that in the given cases the Court was approached in rebel of the actions of the State but at the end, the Courts granted for the authorisation of the rights vested for SC and STs. Thus, implying that these provisions accommodate Fundamental Rights as they are capable of being enforced.

PARMANAND SINGH:

Parmanand Singh discusses his outlook on the before said topic in his article titled Fundamental Right to Reservation: A rejoinder where he begins in a context which was very similar to the Indra Sawhney Court. The social background of the discrimination faced by the backward classes is the similarity between the both. Adopting a sympathetic and thoughtful approach, he expound son the sufferings, discrimination and systematic exclusion of members of impeaded communities. Yet, at the same time proclaims that treating reservations as Fundamental Right would be outlandish, illogical and an unbalanced approached.

Unlike M.P.Singh, Parmanad Singh provides the conceivable outcomes of making reservation a Fundamental right. Constructing his contentions with respect to the cases used by M.P.Singh, Parmanad Singh begins by invalidating the facts and how his interpretation has been off-base.  He starts from the cases which declared Article 15(4) and 16(4) as enabling provision and then comes to the 1988 case of P& T SCs and STs Employees’ Welfare Assn. v. Union of India which was mentioned by M.P.Singh in reference to the fact that the Court recognised 16(4) and 15(4) as fundamental rights. He dissents this elucidation  by saying that the Supreme Court here held that it was not open for the members of the backward classes to come to the Court to urgethe Government to provide job reservations under Article 16(4) in light of the fact that it is an enabling provision. What the Government is not allowed to do is to discriminate between STs and SCs in one department as compared to the ones in another.

Then discussing the landmark judgment of Indra Sawhney, he states that it doesn’t even by implication  points towards the fact that these clauses can be constructed so as to conclude that they render a Fundamental Right to Equality and can be enforced through the order of the Court.

Some direct extracts from the judgment can be very appropriately cited here:

Thommen, J:

“ Article 16(4) is an enabling provision conferring a discretionary power on the state.”

R.M. Sahai, J:

“Article 16(1) is a Fundamental Right whereas 16(4) is an obligation of the State. The former is enforceable in a Court of law whereas the latter is not a ‘constitutional compulsion’ but an enabling provision.”

Pandian, J:

“It is matter of policy of the Government” and so on…

Picking upon the notion of equality as a ‘matter of policy’, he clarifies that M.P.Singh has in a way mistaken it with the notion of equality as a ‘matter of right’. A right is an individual claim where on the contrary a policy is a goal that the entire community desires to attain. Constitutional rights in here in citizens and do not exclude anyone from the benefits so conferred. Asking into account the benefit provided by Articles 15(4) and16(4), they would not be called constitutional rights but to the max ‘authorising norms’ as they exclude some in comparison to others as they encroach the individual’s right to equality for achieving real equality for those who have been treated unequally.

Parmanand Singh finds M.P.Singh’s argument regarding Article 21 as unrealistic and says that the Courts’ opinion upon this issue has to be carefully examined to come to a conclusion. To counter M.P.Singh’s argument that the Indian Courts have perceived these Articles as Fundamental Rights, he puts forward passages from other judgments that impose restrictions or add certain important conditions for similar implementations.

Justice P.B.Sawant

“This country has so far not found it feasible to incorporate the right to livelihood as a fundamental right in the Constitution. This is because the country has so far not attained the capacity to guarantee it.”

This principle so stated in the above mentioned judgment also deems fit in the case of reservations as guaranteeing reservations as Fundamental rights will not only deepen the societal wrong of casteism but is also something whose compulsive implementation is an intense undertaking on the part of the State..

Also taking reference from a Supreme Court judgment it can be rightly deduced that implementation of certain rights (if recognised as rights) is reliant upon the economic capacity and development of the country. Reservations must be seen as a collective policy for the overall elevation of the underprivileged and not made an individual right. Thus, concluding that Professor Singh’s thesis is not only disputable on legal level but also in the context of social equity.

1. PERSONAL OPINION AND CONCLUDING STATEMENTS:

In my personal opinion, I would not favour the stand of treating reservation as a fundamental right and find Professor Parmanand Singh’s dogma more consistent as far as the social setting and the consequences it will render are thought about. Article 14 postulates that unequal so must be treated unequally and the State’s inaction would amount to treating unequal so equally which is fundamentally wrong and against the intention of the constitution makers. A Legislation is passed with a variety of ulterior motives to be achieved over a span of time- be t political, instrumental or symbolic, where symbolism is of prior importance. SCs had suffered atrocities for centuries and we do acknowledge the struggle of Bhimrao Ambedkar who had himself suffered humiliation at the hands of his own staff and times when he was denied even the basic amenity of a residential house. The Constitution makers recognised this need to speak up for the untouchables and continue various schemes of affirmative action for the SCs and the STs including the appointment of a special commission to look exclusively at this issue. The necessity to be fulfilled on the part of the State was done by providing reservation and asking for it to be made a Fundamental Right is too much to ask for and indirectly a way of taking advantage of the past wrongs committed upon the members of the reserved categories.

Thus, as an individual, the author supports Professor Parmanand Singh, finding his arguments to be well grounded with lawful support.

BIBLIOGRAPHY:

• Parmanand Singh, Fundamental Right to Reservation: A Rejoinder, (1995) 3 SCC (Jour) 6.
• Mahendra P. Singh, Are Articles 15(4) and 16(4) Fundamental Right?, (1994) 3 SCC (Jour) 33.
• http://www.bhu.ac.in/lawfaculty/blj2006-072008-09/BLJ_2007/7_A%20Srivastava.doc
• Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217.
• R. Balaji v. State of Mysore, AIR 1963 SC 649.
• State of Kerala v. N.M. Thomas, (1976) 2 SCC 310.
• Unni Krishnan v. State of A.P., (1993) 1 SCC 64.
• & T. SC/ST Employees Welfare Assocn. v. Union of India, (1988) 4 SCC 147.
• Joy Kanta Hira v. State of Assam, AIR 1988 Gau 24.
• Kesavananda Bharti Sripadagalvaru and Ors. V. State of Kerala and Anr., (1973) 4 SCC 225.