Fundamental Right to Reservation: A Rejoinder

by Parmanand Singh

My distinguished colleague Professor M.P. Singh deserves great praise for his
incisive analysis of the constitutional issues involved in acknowledging a
fundamental right to affirmative action . Professor Singh maintains that the
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constitutional scheme as well as judicial decisions support the notion that every
member of the Scheduled Castes and Scheduled Tribes can claim preferential
treatment as a matter of fundamental right to equality. The great merit of his rights
thesis is that it enables the members of the intended beneficiaries to resort to courts
to compel the Government to provide compensatory benefits as a matter of right.
His paper is particularly interesting in the wake of Mandal according legitimacy
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and binding power to job reservations for OBCs. It is interesting in this context to
note that though he advances several super-classification arguments in favour of
the SCs and STs being accorded fundamental rights, he does not seem to have any
valid reason not to apply the same arguments in favour of the OBCs as well.

The acknowledgement of a fundamental right to affirmative action deserves our

sympathy and support. There is so much of suffering, discrimination and
systematic exclusion of members of disadvantaged groups from valued resources,
opportunities and careers, that a theory of rights may help them to fight existing
inequalities. But despite its usefulness this theory seems illogical, unsound as well
as unbalanced. Some may even consider it undesirable. One is aware that the DMK
leadership in Tamil Nadu could compel the Government to retain 69 per cent
reservation notwithstanding Mandal . In Kerala, political compulsions were
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forcing all the political parties to resist the Centre's directive to eliminate the
creamy layer from the OBCs. With too much of politicisation of the reservation
issue and political abuse of this device, one has to move with great circumspection
in acknowledging a right to reservation. One cannot overlook that Articles
15(4) and 16(4) have been placed under several limitations especially in respect of
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a firm evidence of clear and legitimate identification of the backward groups.
In Mandal the Court has clearly ruled that reservations in promotions are
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constitutionally impermissible. The Court has also advised the Government not to
make any reservations in higher positions and in specialized areas. For instance, no
reservations should be provided in technical posts in research and development
institutions, in specialities and superspecialities in Medicine, Engineering and other
such areas. Similarly university professorship and higher echelon positions in
Defence, Space Science and Nuclear Research have to go by merit alone.
Reservations in these kinds of jobs are seen as inconsistent with the values of
efficiency that are needed in such professions and services.

The consequences of recognising reservation as a fundamental right are also

relevant. Once something which has so far been recognised as a matter of policy is
acknowledged as a guaranteed fundamental right, each individual claim to secure
the 'enforcement' of such right will be subject only to judicial determination. It may
lose popular and political control. The right to affirmative action will thus open a
floodgate for indeterminate, uncertain and vacuous claims. It seems even the courts
are not likely to be responsive to such claims as a matter of enforceable right. It
may be mentioned here that beginning from Balaji until the nine-Judge Bench
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decision of the Supreme Court in Mandal , Articles 16(4) and 15(4) have been
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treated as enabling provisions. In C.A. Rajendran v. Union of India it was urged

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that Article 16(4) was itself a fundamental right granted to the SCs and STs. The
Supreme Court rejected it and ruled that this clause imposed a duty on the State to
make reservations but "Article 16(4) is an enabling provision and confers a
discretionary power on the State to make reservation" . This proposition was
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reaffirmed in all subsequent decisions. In 1988, in P & T SCs and STs Employees'
Welfare Assn. v. Union of India the Supreme Court categorically ruled that it was
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not open for a member of SCs/STs to move a court to compel the Government to
provide job reservations because Article 16(4) was merely an enabling provision. It
was, however, held that in providing reservations the Government cannot be
allowed to discriminate between SCs/STs of one department with those working in
other departments. Finally, in Mandal all the nine Judges uniformly agreed that
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Articles 16(4) and 15(4) are couched in enabling language and represent an
empowerment of the State to pursue the goals of substantive or genuine equality . 9

None of these Judges even indirectly indicate that these clauses can themselves be
construed as aspects of the fundamental right to equality and thus be enforceable in
a court of law.

It is submitted that the notion of equality as a matter of policyhas to be kept distinct

from the notion of equality as a matter of right. Professor Singh forgets that in the
Constitution the protective clauses are juxtaposed with the main clauses
guaranteeing non-discrimination and equality of opportunity. The Constitution
seems to view it as a matter of policy. A policy stipulates a collective goal which a
community seeks to pursue. A right is an individual claim which seeks to protect
an individual's interest. Rights are primarily protective. They guarantee citizens
certain basic freedoms and protect them against intrusion, discrimination and
arbitrary action by the State. The duties correlative with these personal rights are
largely prohibitions. Constitutional rights inhere in citizens generally and no one is
excluded from the benefits they confer. Indeed, these constitutional rights can
justly be suppressed for achieving certain social or collective goals. In a sense,
Articles 16(4) and 15(4) could be treated as 'authorising' norms in Kelsenian sense,
justifying encroachment of the individual's right to equality for achieving real
equality for the members of the disadvantaged groups.

Professor Singh is right when he observes: "Discrimination results only when

religion, race, caste, sex or place of birth or any of them is made the basis of
disrespect, contempt or prejudice for difference in treatment" . This is exactly the
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principle that Professor Ronald Dworkin has advanced in defence of affirmative

action programmes for blacks in America . Professor Dworkin holds that rights are
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individual claims which operate as 'trumps' over collective goals. If a right is truly
a right, it must have some weight to 'trump' policy considerations. But
compensatory discrimination is thought of as serving a policy of increasing caste
harmony by eliminating visible and institutionalised prejudices and increasing
economic equality by removing some of the obstacles that keep the members of
backward classes in an economically and socially disadvantaged position. Dworkin
argues that a right is a matter of principle and thus every citizen has a right not to
be discriminated against on racial grounds and has a right to be treated with equal
concern and respect. It is submitted that the underlying argument in Dworkin's
theory has adequately been embodied in the non-discrimination clauses of Articles
15 and 16. The rights theory of Professor Dworkin may help Professor Singh in
justifying preferential treatment but not for justifying a fundamental right to
reservation. The justification debate that takes place in America is of little
relevance in India in view of a clear constitutional policy of compensatory
discrimination as signified by Articles 15(4) and 16(4) .
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The main argument advanced by Professor Singh in defence of his rights thesis is
that since Articles 16(4) and 15(4) are no more treated as exceptions to the rest of
the provisions, they themselves are fundamental rights. Surprisingly, Professor
Singh dismisses the characterisation of these clauses as exceptions in pre-
Thomas cases as mere 'impressions' gathered on a plain reading of these clauses .
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But how can one eat the words used in these clauses just to support a particular
theory of rights? The words "Nothing in this article shall prevent the State from
making any provision" in Article 16(4) and "Nothing in Article 15 or Article 29(2)
shall prevent the State from making any special provision" in Article 15(4) clearly
establish that these clauses constitute authorising provisions for implementing the
directives contained in Article 46. Whereas Article 15(4) empowers the State to
pursue all kinds of equalising measures in all its dealings Article 16(4) is limited
only to the device of reservations. Exceptional character of Article 15(4) was noted
in Balaji as against excessive reservations and as against public interest involved in
preserving and maintaining efficiency in professional and technical education. A
percentage limitation was indicated as a broad policy to strike a reasonable balance
between the individual claims of meritocracy and collective claims based upon
redressal of historic wrongs. This position remains unchanged even after Mandal.
It is true, that in Thomas, the Supreme Court ruled that Article 16(4) was not an
exception to Article 16(1) but an emphatic statement that equality of opportunity
could be carried to the extent of making reservations. But Thomas nowhere
acknowledges a fundamental right to affirmative action.

It is respectfully submitted that the significance of Thomas lies in the enlargement

of the power of the State to provide employment preferences of all kinds to the
members of SCs and STs in view of their special mention in Articles 46 and 335.
The State power is not limited only to reservations as a means of preference but the
Government can legitimately employ all possible methods to achieve actual or
substantive equality for these groups in the services. All other kinds of preferences
could be upheld under Article 16(1). Mandaldeparts from Thomas on this point and
adopts the dissenting opinion of Justice Beg in Thomas and expands the meaning
of reservation used in Article 16(4) to align the doctrine with existing practice
about age relaxations, age waivers, test exemptions, fee concessions and so forth.
Clearly Mandalrejects Thomas that Article 16(1) itself mandates substantive
equality for the backward classes. Mandal holds that no preferences for these
groups will be constitutionally permissible under Article 16(1). Article 16(4)
exhausts all power of backward class preferences. In a sense, therefore, Article
16(4) has been recognised as an exception to Article 16(1) in relation to backward
classes. In any case whether Articles 15(4) or 16(4) are treated as exceptions or not
would be relevant only in discussing the limits of the power of the State to take
affirmative action and would in no way help Professor Singh to construct a theory
of right to reservations.

Another argument advanced by the learned scholar is that if Article 21 which is

couched in negative terms can give rise to positive rights, there is no reason why
Articles 16(4) or 15(4) should not give rise to positive rights. He particularly
cites Unni Krishnan which recognises right to education as an aspect of right to
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life under Article 21. This argument though attractive is unrealistic. I presume that
if pressed, Professor Singh would agree that despite the fact that the directive
principles have greatly been exalted in constitutional dignity by an imaginative
judicial interpretation according certain directive principles the the status of
fundamental rights, the "directive principles as fundamental rights" theory is far
from being clear from jurisprudential point of view. It is futile to hold that Article
21 embraces all graces of human civilisation and embodies right to education, right
to means of livelihood, shelter, human dignity and a horde of other social goods
and then to hold that the realisation of these rights would depend upon the
economic capacity and development of the State. If these moral rights have already
been recognised as directive principles; then what is the difference? Even these
new positive rights enunciated as legal rights do not break the pattern of State
patronage and dependence and the passivity of the intended beneficiaries. The
implication is that these positive claims can only be 'promoted' and are possibly
incapable of being 'enforced' by affirmative litigation. Professor Singh himself
seems to assign to Articles 15(4) and 16(4) the status of these positive claims only
because he tries to equate the rights in them in the positive claims identified
in Unni Krishnan. 16

It is important to remember that the courts are involved in a series of contradictions

when they are asked to enforce the beneficial rights promised by them. To take just
one example, the ambiguity and uncertainty over the meaning of "right to life" as
including right to work and means of livelihood enunciated in Olga Tellis has led
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Justice P.B. Sawant in D.D. Employees' Union to remark: "This country has so far
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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. Advisedly therefore, it has been placed in the Chapter on Directive
Principles." Again, in Mohini Jain , the Supreme Court read a fundamental right to
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education as an aspect of the right to life and then in the next breath added that
meaningful realisation of this right would depend on the economic capacity and
development of the State. In Unni Krishnan the Supreme Court quickly realised
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that the prevailing political economy in India could not sustain a fundamental right
to education at all levels and then limited the right to education up to the level of
primary education. The point is that since most of the reconceptualised beneficial
rights do not promise enforcement through judicial process their status is no better
than the Directive Principles of State Policy. Therefore, Professor Singh's
contention that right to affirmative action should be aligned with other beneficial
rights read by the courts in the Constitution is devoid of any merit.

We agree with Professor Singh that the idea of correlativity between rights and
duties is a controversial one, at least in the area of constitutional rights. Hohfeld
thought of rights (i.e. claims, powers, liberties, immunities) against specific
persons and not against the State. But social or economic rights can exist even if
they are inadequately protected or enforced through courts. Likewise, the value of
equality can be protected by promulgation of constitutional policies and goals. The
Indian Constitution imposes an obligation on the State to pursue the goals of
substantive equality on the guidelines indicated by the directive principles
contained in Articles 38 and 46. Performance of this obligation has been facilitated
by Articles 15(4) and 16(4) which explicitly permit the State to depart from formal
equality in distributing opportunities and careers in the society. These clauses in
effect support the argument of Professor Ronald Dworkin when he asserts:
"Government must not only treat people with concern and respect but with equal
concern and respect. It must not distribute goods or opportunities unequally on the
ground that some citizens are entitled to more because they are worthy of more
concern." The policy of reservation creates an obligation on the State to treat
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everyone with equal respect and concern and in this sense this policy serves
the principle of equal treatment. But this policy does not create any corresponding
individual right in favour of the members of the beneficiary groups.

Asserting a right is quite different from suggesting that something would be on the
whole desirable or good. Rights have special normative force. This special
normative force is the result of invoking rules that we already accept and are
committed to, rather than simply appealing to general moral considerations. If
people are to claim 'rights' (like right to reservation) that are not recognised or
conferred by any positive or actually accepted rules, their claims are vacuous. Only
if we restrict the idea of rights to rights conferred by positive rules can the concept
of a right have any definite content and value. In our submission, the claims
advanced in the guise of right to reservation should be accepted as social or
collective goals or as matters of policy rather than acknowledged as fundamental
rights. In short, Professor Singh's thesis reading fundamental right to reservation in
Articles 15(4) and 16(4) is highly controversial and problematic even from the
point of view of legal as well as social justice.

* Professor of Law, University of Delhi.

1. M.P. Singh : "Are Articles 16(4) or 15(4) Fundamental Rights?" (1994) 3

SCC (Jour) 31-41.
2. , 1992 Supp (3) SCC 217. Return to Text
3. Article 15 deals with prohibition of discrimination on grounds of religion,
race, caste, sex or place of birth and states as follows:

(1) The State shall not discriminate against any citizen on grounds
only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex,
place of birth or any of them be subject to any disability, liability,
restriction or condition with regard to:
(a) access to shops, public restaurants, hotels and places of public
entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public
resort maintained wholly or partly out of State funds or dedicated to
the use of the general public.
 (3) * * *

(4) Nothing in this article or in clause (2) of Article 29 shall prevent the
State from making any special provision for the advancement of any socially
and educationally backward classes of citizens or for the Scheduled Castes
and the Scheduled Tribes. Return to Text

4. Article 16 deals with equality of opportunity in matters of public

employment and reads as follows:

(1) There shall be equality of opportunity for all citizens in matters

relating to employment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex,
descent, place of birth, residence or any of them, be ineligible for, or
discriminated against in respect of, any employment or office under
the State.

(3) * * *

(4) Nothing in this article shall prevent the State from making any
provision for the reservation of appointments or posts in favour of
any backward classes of citizens which, in the opinion of the State, is
not adequately represented in the services under the State.

(5) * * *

Return to Text

5. M.R. Balaji v. State of Mysore, AIR 1963 SC 649. Return to Text

6. AIR 1968 SC 507. Return to Text
7. Id. 513. Return to Text
8. (1988) 4 SCC 147. Return to Text
9. In Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, Pandian, J.
describes Article 16(4) "a matter of policy of the Government", (para 178);
Thommen, J. treats it as "an enabling provision conferring a discretionary
power on the State". (para 287); R.M. Sahai, J. says that "Article 16(1) is a
fundamental right whereas Article 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". (para 564); Kuldip
Singh, J. also treats this clause as an enabling one in para 358. Sawant, J.
observes: "(T)he provision of Article 16(4) is couched in an enabling
language" (para 435) and Jeevan Reddy, M.H. Kania, M.N. Venkatachaliah
and A.M. Ahmadi, JJ. also describe this clause as empowering the State to
provide job reservations. Return to Text
10. (1994) 3 SCC (Jour) 31, 36. Return to Text
11. Ronald Dworkin: "Taking Rights Seriously", 227, 228, 273 (1977). Return to

Text

12. While defending the programmes of privileged admissions on the

touchstone of equal protection guarantee Professor Dworkin himself
concedes it as a policy when he says "the fairness and constitutionality of
any admission program ... is justified if it serves a proper policy that
respects the rights of all members of the community to be treated as equals".
See Ronald Dworkin: "Taking Rights Seriously" at p. 239. Return to Text
13. State of Kerala v. N.M. Thomas, (1976) 2 SCC 310.Return to Text
14. (1994) 3 SCC (Jour) 31, 34. Return to Text
15. Unni Krishnan v. State of A.P., (1993) 1 SCC 645. Return to Text
16. Supra n. 1 at p. 37 he observes "If a negative and amorphous right to life and
liberty in Article 21 can give birth to new and until recently, unimaginable
fundamental rights in terms of the directive principles there is a much
stronger case for recognising fundamental rights for the SCs and STs under
the positive and quite specific provisions of Articles 15(4) and 16(4)." Return
to Text

17. Olga Tellis v. Bombay Municipal Corpn., (1985) 3 SCC 545. Return to Text
18. Delhi Development Horticulture Employees' Union v. Delhi Admn., (1992) 4
SCC 99. Return to Text
19. Mohini Jain v. State of Karnataka, (1992) 3 SCC 666.Return to Text
20. Ronald Dworkin: "Taking Rights Seriously", at pp. 272-273.Return to Text