Reservation is not a fundamental right

This statement by Supreme Court in few cases recently has sparked a debate. Many political leaders and parties have been left fuming over this remark of the Supreme Court. Many questioned this judgment of the Supreme Court. But the fact that reservation cannot be claimed as a fundamental right is a settled position under the law and this has been pointed out in several judgments in the past.

Fundamental rights are enshrined under�chapter III�of the Indian constitution. Article 14 of the constitution guarantees equality before the law and equal protection of laws to everyone. Similarly, Article 16(1) and 16(2) assures citizens of equality of opportunities in employment or appointment to any government offices.

A question is being asked is that:
When reservation provisions are stated under�article�15(4) and 16(4), then why it can�t be considered a fundamental right?

Let�s see what Article 15(4) and 16(4) says:

Article 15(4)�talks about special provisions for the advancement of backward classes. This article is an exception to clauses (1) and (2) of Article 15. As we know article 15 states that- no discrimination on grounds of religion, race, caste, etc.

A five Judged bench of Apex court in�M.R Balaji V. sate of Mysore AIR 1973 SC 649�has held that Article 15(4) is only enabling provision and does not impose any obligation on the state to take any special action under it. It merely confers discretion to act if necessary by way of making special provision for backward classes, a Writ cannot be issued to the state to make a reservation.

Article 16(4) states that � It empowers the state to make special provisions for reservation of appointments of posts in favor of any backward class of citizens which in the opinion of state are not adequately represented in the service under the state. Again this article is also an enabling provision. Here also it is on the discretion of the state to act upon it,

A nine-judge bench of Supreme Court in�Indira Sawhney V. Union of India and ors AIR 1993, SC 477�has examined article 16(4) in detail and held that;

1. No reservation in promotion
2. The Creamy�layer must be excluded from backward classes.
3. Reservation should not exceed 50 percent.

These are some important points in the judgment given by a majority of 6:3.

In�M. Nagraj V, Union of India, AIR 2007 SC 71�Supreme court held that States can make reservation but it has to show in each case the existence of compelling reason namely backwardness, the inadequacy of representation. The state is not bound to make reservation, however, they can exercise their discretion for making such provision.

So it is settled law that Reservation is not a fundamental right. It is at the discretion of the Central and state governments, reservation provisions can be made.

In my opinion, reservation policies need a fresh look. Moving forward reservation policies should come in a mix of social and economic backwardness. The creamy layer must be excluded from the policies; still, there are certain creamy layer groups who still enjoy reservation rights. As far as reservation being a fundamental right is concerned I am of the view that reservation cannot and should not be a fundamental right.