From UPSC perspective, the following things are important :
Prelims level : Reservations in jobs flowing from enabling provisions of the Constitution.
Mains level : Paper 2- Provision for the vulnerable section of the society, Role and importance of affirmative action in the development of the weaker section.
The recent Supreme Court judgment, that there is no fundamental right to claim reservation in promotions, has caused some political alarm.
Received wisdom in affirmative action jurisprudence
- Presence of sound legal framework for a reservation: The received wisdom in affirmative action jurisprudence is that a series of Constitution amendments and judgments have created a sound legal framework for reservation in public employment, subject to the fulfilment of certain constitutional requirements.
- Solidification of reservation as an entitlement: It is also accepted that the framework has solidified into an entitlement for the backward classes, including the SCs and STs.
What does the judgement mean?
- Reservations are not rights: The latest judgment is a reminder that affirmative action programmes allowed in the Constitution flow from “enabling provisions” and are not rights as such.
- Not a new legal position: This legal position is not new. Major judgments- these include those by Constitution Benches-note that Article 16(4), on the reservation in posts, is enabling in nature.
- The state is not bound to provide reservation: In other words, the state is not bound to provide reservations. But if the state provides reservations, it must satisfy the following two criteria-
- For the backward class: It must be in favour of sections that are backward.
- Inadequately represented: And inadequately represented in the services based on quantifiable data.
- What happened in the Uttarakhand case? The Court set aside the Uttarakhand High Court order directing data collection on the adequacy or inadequacy of representation of SC/ST candidates in the State’s services.
- What was the reasoning? Its reasoning is that once there is a decision not to extend reservation — in this case, in promotions — to the section, the question whether its representation in the services is inadequate is irrelevant.
Question of government obligation
- The idea in consonance with the Constitution: The idea that reservation is not a right may be in consonance with the Constitution allowing it as an option.
- The larger question of the government obligation: But a larger question looms is there no government obligation to continue with affirmative action if-
- The social situation that keeps some sections backwards.
- And at the receiving end of discrimination persists?
Why reservation matters for equality?
- Reservation as a faced of equality-the SC: Reservation is no more seen by the Supreme Court as an exception to the equality rule; rather, it is a facet of equality.
- Completion of equality norm: The terms “proportionate equality” and “substantive equality” have been used to show that the equality norm acquires completion only when the marginalised are given a legal leg-up.
What may be the consequences of this judgement?
- Possibility of the unequal system: Some may even read into this an inescapable state obligation to extend reservation to those who need it, lest its absence renders the entire system unequal.
- Possibility of perceptible imbalance: For instance, if no quotas are implemented and no study on backwardness and extent of representation is done, it may result in a perceptible imbalance in social representation in public services.
Ensuring adequate representation to disadvantaged sections is a state obligation and the state must play its role in ensuring their representation by appropriate legislation.