RIGHT TO RESERVATION           

Recently the supreme court in Dr. Gulshan Prakash & Ors Vs. State of Haryana[1] held that citizens belonging to backward classes, including scheduled castes(SCs) and scheduled tribes(STs), could not force the government to provide them reservation.         

A three-judge bench comprising Chief Justice K.G.Balakrishanan, Justice P.Sathasivam and Justice J.M. Panchal noted that the government was the best judge to take a decision on reservation and it could not be claimed as a matter of fundamental right.         

Dismissing petition seeking a direction to the Haryana government to provide reservation to SCs and STs in post graduate medical courses, the bench pointed out that it was for the state government to decide whether to provide reservation or not.         

Every state can take its own decision with regard to reservation depending on various factors, the bench observed:         

Article 15(4) does not make any mandatory provision for reservation and the power to make reservation under article 15(4) is discretionary and writ can be issued to effect reservation, the bench held.         

The bench accepted the contention of the state government that article 15(4) - which provide for reservation in educational institutions-was merely an "enabling provision" which entitled the the government to provide for reservation.         

 Though the judgment pertained to reservation in educational institutions, Article 16(4), which provided for reservation in public employment, was also couched in similar language.         

The bench specifically recorded in its judgment that sub clause (4) in both the articles 15 and 16 is only an enabling provision for the state government to bring forward legislation or pass an executive order for the benefit of socially and educationally backward classes of citizens and for the scheduled castes and scheduled tribes

Thus, a policy decision to provide reservation , unless unreasonable, would be protected by articles 15(4) and 16(4) from being assailed before courts but a petition could not be filed to force the government to provide reservation as the provision did not provide for mandatory reservation.         

Holding that Article 15 (4) did not make a mandatory provision for reservation, the bench pointed out that the principle behind the provision was that preferential treatment can be given validly when the the socially and educationally backward class need it

It further accepted the contention that the state government was the competent authority to decide the reservation in states.         

The petitioners, who had challenges the decision of the state government not to provide reservation in post  graduate medical courses, had pointed out that several states, had provided reservation to SCs and STs at the post graduate level. They pointed out that the All India Institute of Medical Sciences also provided reservation to SCs and STs in postgraduate medical courses.                   

The bench rejected an argument that the state government was bound to follow the policy of central government which had provided for reservation in postgraduate medical courses. Rejecting the argument the court said, The same (policy) automatically cannot be applied in other selections where state governments have power to regulate.         

Article 15(4) states that the government could not be prevented from making any special provision for advancement of any socially and educationally backward classes of citizens or for the Scheduled castes or Scheduled tribes. though it gives the state (government) the right to provide reservation for backward classes, it does not give the latter a corresponding right to claim reservation as a right.

Opposing the petition, the state government had argued that it had taken a conscious decision of not providing reservation to SCs and STs in admission at the post-graduate level and such a decision of the government suffers no infirmity         

The state government said the matter regarding reservation of seats in the PG courses had been considered by it from time to time and the decision and been taken keeping in view the recommendation of the medical Council of India and decision in some other states.     

since the government of Haryana had decided to grant reservation for SC/ST categories/backward class candidates for admission at MBBS level i.e. undergraduate level then it does not mean that it is bound to grant reservation at the post graduate level also Justice Sathasivam, who wrote the judgment for the bench, said.         

Though the court dismissed the petitions, it said Haryana Government would, however, be free to reconsider its decision.

However, we make it clear that irrespective of the above conclusion, the state Haryana is free to reconsider its earlier decision, if it so desires, and circumstances warrant in the future years, the bench clarified.

While giving the decision in the said historical case the SC court has also considered the following cases as decided by it earlier:         

In K. Duraisamy and Another vs. State of T.N. and Others[2],  a three-Judge Bench, while dealing with the reservation at the Post-Graduate level and super-specialty level, observed as follows:-               

That the Government possesses the right and authority to decide from what sources the admissions in educational institutions or to particular disciplines and courses therein have to be made and that too in what proportion, is well established and by now a proposition well settled, too. It has been the consistent and      authoritatively settled view of this Court that at the super-specialty level, in particular, and even at the postgraduate level, reservations of the kind known as "protective discrimination" in favor of those considered backward should be avoided as being not permissible. Reservation, even if it be claimed to be so in      this case, for and in favor of the in-service candidates, cannot be equated or treated on par with communal reservations envisaged under Articles 15(4) or 16(4) and extended the special mechanics of their implementation to ensure such reservations to be the minimum by not counting those selected in open competition on the basis of their own merit as against the quota reserved on      communal considerations."         

In AIIMS Student’s Union vs. AIIMS and Others[3], while considering the similar issue, it was held that:-

When protective discrimination for promotion of equalization is pleaded, the burden is on the party who seeks to justify the ex facie deviation from equality. The basic rule is equality of opportunity for every person in the country, which is a constitutional guarantee. A candidate who gets more marks than another is entitled to preference for admission. Merit must be the test when choosing the best, according to this rule of equal chance for equal marks. This proposition has greater importance      when we reach the higher levels and education like postgraduate courses. Reservation, as an exception, may be justified subject to discharging the burden of proving justification in favor of the class which must be  educationally handicapped -- the reservation geared up to getting over the handicap. The  rationale of reservation in the case of medical students must be removal of regional or class inadequacy or like disadvantage. Even there the quantum of reservation should not be excessive or societal injurious. The higher the level of the specialty the lesser the role of reservation." 

Permissible reservation at the lowest or primary rung is a step in the direction of assimilating the lesser fortunates in the mainstream of society by bringing them to the level of others which they cannot achieve unless protectively pushed. Once that is done the protection needs to be withdrawn in the own interest of protectees  so that they develop strength and feel confident of stepping on higher rungs on their own legs shedding the crutches. Pushing the protection of reservation beyond the primary level betrays the bigwigs’ desire to keep the crippled crippled forever. Any reservation, apart from being sustainable on the constitutional anvil, must also be reasonable to be permissible. In assessing the reasonability, one of the factors to be taken into consideration would be, whether the character and quantum of reservation would stall or accelerate achieving the ultimate goal of excellence enabling the nation constantly rising to higher levels. In the era of globalization, where the nation as a whole has to compete with other nations of the world so as to survive, excellence cannot be given an unreasonable go-by and  certainly not compromised in its entirety" 

In Ajit Singh (II) v. State of Punjab,[4] the Court held that:          

The Article 16(4) of the Constitution confers discretion and      does not create any constitutional duty and obligation. Language of Article 15(4) is identical, that a mandamus can be issued either to provide for reservation or for relaxation is not correct and runs counter to judgments of earlier Constitution Benches and, therefore, these two   judgments cannot be held to be laying down the correct law. In these circumstances, neither the respondent in the present case could have sought for a direction nor could the High Court have granted the same.         

In State of Punjab vs. Dayan and Medical College and Hospital and   Others[5], wherein similar contention as projected before the court by the counsel for the appellants was raised.

In the judgment in Preeti Srivastava case,[6] it was clarified by the Supreme Court that only paying attention to the question of fixing lower minimum qualifying    marks for   reserved  category candidates. In the same decision, it was stated that such question must be decided by the Medical Council of India, since it affects the standard of Post-graduate medical education.   

In Ajit Singh and Others (II) vs. State of Punjab and Others[7], Constitution Bench has held that Article 16(4) is only an enabling provision, which reads as under:"On the face of it, the above language in each of Articles 16(4) and 16(4-A) is in the nature of an enabling provision and it has been so held in judgments rendered by Constitution Benches and in   other cases right from 1963."

In the case of Union of India Vs. R. Rajeshwaran[8]As Article 16(4), Article 15(4) confers a discretion and does not create any constitutional duty or obligation, therefore, no mandamus can be issuted either to provide for reservation or for relaxation in admission in Universities.         

Thus the right to reservation is not a fundamental right and it cannot be enforced against the state.

[1] Decsions given by the Supreme Court on 02.12.2009 citation is yet to come[2] (2001) 2 SCC 538[3] (2002) 1 SCC 428[4] 1996 AIR 1189, JT 1996 (2) 727  [5] (2001)   8   SCC    664[6] para 10[7] (1999) 7 SCC 209[8] (2003) 9 SCC 294

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