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It is the court’s observations on the dynamics of answerability of the government that are likely to be problematic.
The Supreme Court recently that reservation in jobs and in promotions is not a fundamental right. Expectedly, the ruling has invoked some strong reactions. Mallikarjuna Kharge, a senior leader of the opposition party, has demanded that the Modi government either file a review petition or bring a constitutional amendment to remedy the issue.
Interestingly, the government order of 2012, which has been upheld in the Supreme Court, was issued by the Congress government at the time. Regardless of the political jugglery, it is important to examine the interpretative implications of this decision.
The case pertains to a decision by the Uttarakhand government in 2012. Back then, the government had decided to full up posts in public services without providing reservation to members of the Scheduled Caste (SC) and Scheduled Tribe (ST) communities.
The Uttarakhand High Court directed the state government on July 15, 2019 to implement reservations in promotion by promoting only SCs and STs to maintain the quota earmarked for the said categories. In a review petition filed by the Uttarakhand government, the High Court made three critical observations.
Firstly, the Court said that Article 16(4A) of the Constitution is an enabling provision that does not vest a right to claim reservation in any group of persons. In other words, the state is not under an obligation to provide reservation to members of Scheduled Castes and Scheduled Tribes.
Secondly, the High Court maintained that if the government wants to implement reservation, it has an obligation to justify its decision through quantifiable data which shows that members of Scheduled Castes and Scheduled Tribes are not adequately represented in the services of the State.
Thirdly, the Court directed the government to collect the relevant quantifiable data which would facilitate a decision on whether to grant reservation or not. The Court stressed that the government can take a decision about granting reservation only after collecting the quantifiable data.
The Supreme Court, in its decision passed last week, agreed with the first two observations of the High Court and overruled the third one. The Apex Court has affirmed that reservation cannot be claimed as a matter of right and that the reservation provisions in Article 16 are merely enabling in nature. This particular interpretation is not new. The current decision is merely a reiteration of propositions asserted .
It is also well settled that without quantifiable data showing inadequate representation, the government cannot grant reservation. Here, the Court has further emphasized that the government is not under a similar obligation to collect data while deciding not to implement reservation. Essentially, the Court has absolved the government from any kind of answerability when the government decides not to exercise a discretionary power.
The Supreme Court is not wrong in saying that a writ of mandamus cannot be granted by any court in order to enforce an enabling provision. The writ of mandamus is issued only to compel an authority to discharge a binding duty. Thus, the High Court was wrong in directing the state government to collect data in order to decide on the issue of reservation.
However, the Supreme Court is not correct in its declaration that the government does not have to show any kind of justification in deciding not to implement reservation. To interpret the obligations of the state purely from the textual foundations of Article 16 is not an appropriate approach. Fundamental rights are not isolated provisions and ought to be looked into as an interconnected whole.
It is a very settled principle of law that a discretionary power cannot be exercised in a capricious manner. Simply because the exercise of a power is optional for the government does not mean that it can be exercised in a whimsical manner. Thus, the courts are entitled to examine if a discretionary power has been exercised in a judicious manner. Article 14 of the Indian Constitution has been interpreted to prohibit all kinds of arbitrary decisions by the government.
In relation to an enabling provision, the government can do three possible things. Firstly, it may not even consider, at least formally, the possibility of exercising the discretionary power. This will be an act of omission. Secondly, it may consider the issue and then decide in favour of exercising the power. Thirdly, it may consider the issue and then decide not to exercise the power.
In the first case, the scope of judicial intervention is non-existent. However, in relation to the other two eventualities, the courts can definitely examine the arbitrariness of the decision. A decision not to do something is also a decision which can be judicially scrutinized.
The actions of the Uttarakhand government are of the second category where it actively considered the matter and then decided not to implement reservation. In such a scenario, the courts would be entitled to assess the constitutionality of the decision on the touchstone of arbitrariness under Article 14 of the Indian Constitution.
While political actors are latching on to the declaration that reservation is not a right, it is the court’s observations on the dynamics of answerability which is likely to muddle judicial approach in future. The court has equated a decision not to do something with an omission to take decision. This interpretative mistake may prove to be extremely problematic if followed by High Courts all over the country.
The author is a Fulbright-Nehru Post-Doctoral Research Scholar at Harvard Law School.