JANATA TRUST of Non-Cooperation and Appointed a Islamia Became Operational

Established 1946 1 Pages 20 Price : Rupees Five Vol. 75 No. 4 Supreme Court’s (New) Reservations Judgment February 16, 2020 and Its Discontents This Won't Be Breaking News: CO2 Levels Hit Record High of 416 ppm Gautam Bhatia Jessica Corbett On 7 February, a two-judge be challenged. Appellants further Isalak and its Struggles Against CAA–NRC bench of the Supreme Court handed argued that as the collection of Amey Tirodkar down a judgment holding that “quantifi able data” was a precursor Jamia – An Offspring of the Article 16(4) of the Constitution to providing reservations, it followed Freedom Movement Aamir H. Khan, Aban Usmani is only an enabling provision, ipso facto that “there is no necessity Why I Will Never 'Go to Pakistan' and does not confer a “right” to for collection of any quantifi able Laila Tyabji reservations. The context of the data after the Government has At Nizamuddin Auliya’s Dargah, case was as follows: in 2012, the taken a decision not to provide Basant is the Colour of Harmony Bharat S. Tiwari government of Uttarakhand decided reservations.” Private Players Line Up to Run to fill up the posts in the state’s The Court agreed with these Private Trains public services without providing submissions, and also agreed with Sabrangindia reservations to Scheduled Castes its 2016 judgment in Suresh Kumar Apartheid in the Global Governance System (SCs) and Scheduled Tribes (STs). Gautam v State of UP, where these Jason Hickel This was challenged, and after contentions had been accepted. In The United States as Destroyer a round of litigation before the paragraph 12 of the judgment, it of Nations Daniel Kovalik Uttarakhand High Court, that court noted that: Mexico’s AMLO Shows How It’s Done directed “the State Government to “It is for the State Government Ellen Brown collect quantifi able data regarding to decide whether reservations Editor : G. G. Parikh inadequacy of the representation of are required in the matter of the Scheduled Castes and Scheduled appointment and promotions to Associate Editor : Neeraj Jain Tribes in Government services public posts. The language in clauses Managing Editor : Guddi which would enable the State (4) and (4-A) of Article 16 is clear, Government to take a considered according to which, the inadequacy Editorial Board : decision on providing or not of representation is a matter within B. Vivekanandan, Qurban Ali, providing reservation.” the subjective satisfaction of the Anil Nauriya, Sonal Shah, Appellants argued before the State. The State can form its own Amarendra Dhaneshwar, Supreme Court that the judgment opinion on the basis of the material Sandeep Pandey of the Uttarakhand High Court it has in its possession already or it was wrong, as “there is no may gather such material through D-15, Ganesh Prasad, constitutional duty on the part of a Commission/Committee, person Naushir Bharucha Marg, the State Government to provide or authority. All that is required is Mumbai - 400 007. reservations.” Once, therefore, that there must be some material Email : [email protected] the government had taken the on the basis of which the opinion is Website:www.janataweekly.org decision (in 2012) not to provide formed.” reservations, that decision could not This, however, was limited to 2 JANATA, February 16, 2020 situations where the State made understanding that the Articles that places a “power plus duty” upon provisions for reservation. That, 14–15–16 “Equality Code” under the government. however—the Court held—was the Constitution was not about As Lahiri writes, “a constitutional purely discretionary. Consequently: bare formal equality, but about provision conferring power/ “As the Government is not substantive equality—i.e., equality discretion on a State authority, bound to provide reservation in that took into account existing social couched in permissive language, is to promotions, we are of the opinion and structural disadvantages, and be treated as a provision containing that there is no justifi able reason required the State to remedy them. a power coupled with a duty, if the for the High Court to have declared This understanding of constitutional failure or conscious omission on the proceeding dated 05.09.2012 as substantive equality has never the part of such authority to act illegal.” seriously been questioned after would nullify the effect of another/ In other words, there was no N.M. Thomas, and has recently been other constitutional provision, or obligation upon the State to collect reaffi rmed (albeit in the contexts of render nugatory a constitutional data in order to deny reservations. Articles 14 and 15) in Navtej Johar principle emerging from a mosaic There are, however, two and Joseph Shine. of constitutional provisions.” problems with this line of reasoning, Consequently, if Article 16(4) Lahiri then argues that if Article that I set out below. is a facet of Article 16(1), then 16(4) was to be read as a purely it necessarily follows that what enabling provision that conferred no Article 16 and Substantive Article 16(1) guarantees is a right to duties, this would mean that while Equality substantive equality of opportunity there was an obligation upon the The first is the Court’s (and 16(4) is—in the words of NM State to collect data before it granted characterisation of Article 16(4) as Thomas—an “emphatic restatement reservations, there would be no such a purely enabling provision, and its of that right.” Consequently, while it obligation if it chose not to do so. conclusion from that that inadequacy is correct to say that there is no right However, this would mean that: of representation is a matter within to reservations (as the language of “There is a hurdle created to pull “the subjective satisfaction” of the 16(4) is indeed enabling), there is a up backward groups, but none for State. This, however, is at odds right to substantive equality. This, pulling them down, or for ignoring with the scheme of Article 16 of the in turn, means that if the status quo them entirely. This, I believe, is Constitution as interpreted by the involves formally equal treatment of inconsistent with the equality code Supreme Court. individuals in substantively unequal of our Constitution, and Article 16 Until the mid-1970s, the circumstances—when it comes itself contains no textual basis for Supreme Court’s position was that to appointments or promotions in such asymmetry. It is this asymmetry Article 16(4) was an exception to the public services—Article 16(1) is problem that can be remedied if the guarantee of equality of opportunity breached. Supreme Court recognizes the fact set out in Article 16(1). In other The Uttarakhand High Court that Article 16 contains within it words, 16(4) carved out a space (for was well aware of this distinction an enabling power coupled with a inadequately represented sections) (as it also was in another judgment positive duty.” where the normal principles of it delivered a few days later). Notice that the asymmetry equality of opportunity would not Consequently, it did not direct the problem is taken care of by NM apply. It was, of course, up to the government to provide reservations. Thomas’ reading of Article 16: State whether or not it chose to avail What it did do was direct the because that reading makes the of this exception, and provide for government to collect data on pulling up of “backward groups” reservations. inadequacy of representation, so an obligation upon the State. On In NM Thomas, however, that that a decision could be taken on the Supreme Court’s reading, position changed. It was held that how to remedy existing substantive however, it is made explicit that Article 16(4) is not an exception inequality. This—as Karan Lahiri (an the government must collect data to, but a facet of Article 16(1). advocate practicing at the Supreme if it wants to provide reservations/ That changed interpretation fl owed Court) has argued in an article—is a substantive equality (“pull up”), from the Supreme Court’s evolving reading of the scheme of Article 16 but is not obligated to do any such JANATA, February 16, 2020 3 thing if it wants to deny reservations/ necessarily follows that a coherent collect information pertinent to that substantive equality (“pull down/ reading of the scheme of Article decision. Any other reading would ignore”). This is obviously at variance 16 reveals that the discretion of the defeat the basic idea of substantive with the constitutional scheme. State under 16(4) is not unbounded. equality under Article 16(1). 16(4) codifi es a “power plus duty”: What about NALSA? the State is empowered to decide (Gautam Bhatia is a Delhi based The second problem is a more upon reservations, but it has a duty to Lawyer.) straightforward one. Recall that in NALSA v Union of India, the This Won't Be Breaking News: CO2 Levels Hit Supreme Court had taken judicial notice of the fact that the transgender Record High of 416 ppm community was underrepresented Jessica Corbett in government employment, and on that basis, had specifi cally directed affi rmative action measures under The concentration of carbon reports from the United Nations' Article 16. It follows from this that if dioxide in the atmosphere hit a Intergovernmental Panel on Climate indeed it has been found that a group record high Monday, a reading Change, wrote on Twitter Tuesday falls within the scope of Article from the National Oceanic and that the record was not something "to 16(4), the demands of substantive Atmospheric Administration that be proud of." Instead, van Ypersele equality under Article 16(1) require elicited fresh calls from climate said, it is a reminder that "emissions the State to take measures to bring activists and scientists for the from fossil fuels and deforestation about real and effective parity.

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