Critique of Reservation in India: A Fundamental Right or Not?
- Simran Bais
Reservation- An Affirmative Action
Reservation has find its place in India due to the presence of Art 14 in the Constitution of India. The Constitution of India is a social document that balances the needs and aspirations of the people and facilitate them with Social, Economic and Political justice. It is an instrument of Social harmony that envisages achievement of goals of justice from all the three angles as mentioned above. In order to promote social justice reservation policies came into picture. It is important for us to understand what consists of social justice, social justice is the comprehensive form to remove social imbalance with the help of law by harmonizing rival claims or the interests of different groups and sections in the social structure or individuals by means of which alone it would be possible to build a welfare state. The promise for social, economic and political justice to citizens promised by the Constitution of India cannot turn a blind eye to deliberate infliction of a state of misery to large segment of our population. Under the mandate of Rule of Law, these three needs to be preserved and protected with social justice, economic empowerment and political justice. It cannot be denied that the constitutional schemes and judicial decisions are always devised keeping in mind the upliftment of the weaker sections of the society such as Scheduled Castes and Scheduled Tribes, they also require enforcement of such schemes and policies for preferential treatment in order to achieve equality in their spheres of life. The thesis behind this principle draws a line of understanding that it enables the members of intended beneficiaries to compel the courts and the governments to provide them compensatory benefits as a matter of right.
Economic Justice and the Dream for Welfare State
The state in a democratic society derives its strength from the cooperative and dispassionate will of all its free and equal citizens. The banishment of poverty can be done not through the basis of expropriation from those who have, but through the means of multiplication of national wealth and resources and an equitable distribution of resources amongst the citizens so that the inequalities are kept at bay. It can be deduced that economic justice aims at establishment of economic democracy and a ‘welfare state.’ There is so much of suffering, discrimination and exclusion of some weaker sections of the society for valued resources and opportunities, the theory of rights provides a way to help them fight against the existing inequalities.
With too much politicisation of issue and abuse of such a political device, it requires due diligence and circumspection to analyse the question whether reservation can be categorised as a Fundamental Right or not. The fact that Art 15 (4) and Art 16(4) have been placed under several limitations cannot be overlooked especially with reference to being an evidence of clear and legitimate identification of backward classes. The Mandal case clearly points to the issue that no reservations needs to be provided in areas of promotion. The Court also advised the central government to deny reservations in the area demanding speciality, super-speciality in like in the field of Medical, Engineering and Research & Development and other technical arenas.
Reverberations of acknowledging reservation as a Fundamental Right
The acknowledgement of reservation as a fundamental right will have the associated consequences with it also. The measure of policy which has become a fundamental right will tend individuals to secure the enforcement of their rights which would be subject to judicial determination. The decks of the Hon’ble Supreme Court would be flooded with all the cases pertaining to enforcement of their fundamental right for indeterminate, uncertain and inscrutable claims. The matter of policy should be distinguished from the notion of equality as a matter of right. The Constitution seems to view reservation as a matter of policy the Constitution guarantees clauses which are prohibiting discrimination and providing equal opportunities to all its citizens. A policy is a matter of collective right pursued to attain collective goals. A right is an individual claim which seeks to protect individual’s interests. Rights are primarily protective in nature they provide citizens with certain rights which they enjoy and restricts the arbitrary actions of the state from violating the guaranteed rights to the citizens.
The rights are backed with normative force. This special normative right is a result of some ingrained and are accepted and committed too. The same is not recognised or confirmed by any positive rules and hence, if people were to claim such rights on which their claims are uncertain would surely be landing us in a troublesome situation. Therefore, the claims advanced should be for the social just cause and a collective goal and this should not be construed as a Fundamental right because the significance of Art 340 of the Constitution cannot be undermined which focuses on the efficiency of the administration.
Dalmia Cement (Bharat) v. Union of India (1996) 10 SCC 104
Nandini Sundar v. State of Chattisgarh AIR 2011 SC 2839
SS Bola v. BD Sardana (1997) 8 SCC 522
M.P. Singh: "Are Articles 16(4) or 15(4) Fundamental Rights?" (1994) 3 SCC (Jour) 31-41
State of Punjab v. G.S. Gill AIR 1997 SC 2324