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Author: Biyanka Bhatia, III year of B.A.,LL.B. from University of Petroleum and Energy Studies


Affirmative action in India undoubtedly has been a subject to the profusion of political, academic and judicial discussions. Being a diverse nation, caste in India has been a primary cause for discrimination since early Indian society and polity. The caste-based occupational hierarchy placed certain communities at the bottom of the list and consequently in a perennial cycle of occupational servitude and discrimination across the country. Therefore the Constitution of India has provided for “reservation” to secure socio-economic justice to the vulnerable and downtrodden sections of the society to bring them to the mainstream of the nation’s life. But when it comes to the reservation in promotion, the Supreme Court seems to be skeptical about it.

Proof of Compelling Reasons

To briefly summarize the route of reservation in promotion, even though the Supreme Court in 1962 upheld the constitutionality of reservation at the promotional level in the case of General Manager, Southern Rly. vs Rangachari under Articles 16(1), 16(2), and 16(4), and subsequent cases, their skepticisms and disagreements through obiters was visible. Later it was held to be unconstitutional in Indra Sawhney vs Union of India, but to nullify the effect of this judgment, the Constitution (Seventy-Seventh Amendment) Act, 1995, was passed which introduced Article 16(4A). In the M Nagaraj vs Union of India case, even though the court upheld reservation in promotion, the grounds for upholding the same do not seem to be based on sound constitutional principles, it stated that reservation in promotions is not a question of law but of fact which is to be determined the case to case basis, construed the scope of Article 16(4) of the Constitution in light of Article 335, which is incorrect when read with Article 320(4) of the Constitution and most importantly introduced the concept of proof of compelling reasons for the State Government to provide for reservation in public employment.

Proof of compelling reason to be provided by the State, as is required under Article 16(4A), is an element of strict scrutiny principle, to clarify India doesn’t seem to be apt to apply this principle, the US Constitution derives such power from due process clause which was rejected by India and procedure established by law is followed. Keeping it aside, 16(4A) was stated to be an enabling provision which means that the State as an authority will have to assess the need for implementation of reservation schemes. Implying that the state has the power to decide the people entitled to avail such schemes. Consequently, the Court in effect should withdraw from its power to review reservation schemes.

Issues in Implementation

This clearly highlights the problem within the provision implementation; before the insertion of 16(4A), the focus of the court was on the general ill-effects of reservation and the damage it causes to the efficiency of administration which is required to be maintained under Article 335 of the Constitution whereas, after its addition, it has resorted to the analysis of data to be provided by the state. It is believed that the Court's emphasis on quantifiable facts, which has been identified as a prerequisite proof of backwardness, is an effort to camouflage its otherwise subjective opinion as objective reasoning. The Supreme Court in the case of Suraj Bhan Meena vs State of Rajasthan stated that as a result of this approach by the Courts, reservation systems in promotional positions have been repeatedly struck down on the grounds that the government has refused to offer credible evidence to demonstrate inadequacy in inclusion and community backwardness. For example, the act which provided for reservation in promotions in the case of U.P. Power Corporation vs Rajesh Kumar was held to be ultra vires, it was stated that it is imperative for the purpose of objective satisfaction of the State, to generate data to prove that there is the backwardness of the community of the persons. This was seen by the legislature and thus a bill was introduced in the house, but it was rejected therefore the dictum of Nagaraj is being followed. Repeated attempts by the State to provide for reservation in promotion have been struck down by the Court on the ground of absence of objective proof as was seen in Suraj Bhan Meena and U.P. Power Corporation.

This issue of strict scrutiny by the court has led to the failure of implementation of Article 16(4A), the court has used this principle to factually adjudicate upon equality, due to this the consequence is that the states have been striking down on promotion-related regulations. It was stated in the case of Suresh Chand Gautam v. State of U.P. that because of the Court's constant intervention, skeptical states have started avoiding data collection and, as a result, no reservation-related schemes could be implemented, because the state could now anticipate the inevitable outcomes of reservation initiatives if they are brought to court. This action has led to another series of problems, because of the discretion provided to states they are opting out of reservation schemes and the court cannot enforce the states to provide for any data to justify it.

Recent Developments

Recently in the case of Mukesh Kumar & Anr vs The State of Uttarakhand where the Uttarakhand Government decided to fill all the posts in the State Public Services without providing any reservation to SCs and STs, the Supreme Court said that the State Government is not bound to make reservations, and it is not bound to provide quantifiable data to justify its decision of not providing reservation. The court held that “not being bound to provide reservations in promotions, the State is not required to justify its decision on the basis of quantifiable data, showing that there is an adequate representation of members of the Scheduled Castes and Scheduled Tribes in State services.” The court held that even if the Court is made aware of the underrepresentation of Scheduled Castes and Scheduled Tribes in public facilities, no mandamus can be given to the State Government to include reservation in light of the law laid down by the apex Court in C.A. Rajendran vs Union of India. This is very problematic as the state has the power to form an opinion on the representation of the caste without collecting the necessary data. This decision grants the State Executive arbitrary authority to determine whether or not to provide a reservation, without having some kind of checks and balances, which will potentially result in executive overreach because the State Executive would not be held accountable for any excuse or rationale if they decide against providing a reservation.


The Constitution of India was framed with the aims of equality and justice, agreeing with the court that reservation is not a fundamental right, hence no mandamus, but the presence of the right to proportional equality under Article 14, 15, 16 is being ignored. Has it been the hasty drafting of 16(4A) by the legislature or the reasoning adopted by the judiciary, the end aim of all is to provide justice to the society and the strength of the judiciary has always been to correct its own errors and move forward and so is expected from this provision as well.