Analysis of Judgement

♤ The fact that reservation cannot be claimed as a fundamental right is a settled position under the law and has been pointed out by several judgments in the past.

o In 1967, a five-judge bench in C.A. Rajendran v. Union of India held that the government is under no constitutional duty to provide reservations for SCs and STs, either at the initial stage of recruitment or at the stage of promotion.

o The position went on to be reiterated in several other decisions, including the nine- judge bench ruling in Indra Sawhney v. Union of India (1992) and the five-judge bench decision in M Nagaraj v. Union of India (2006).

♤ Although this position of law is a settled one, it is nonetheless at odds with certain other principles at the heart of the constitutional vision of equality.

o In NM Thomas judgement (1976), the Supreme Court held that the Constitution was committed to an idea of substantive equality, i.e. it had to take the actual circumstances of people into account when determining what constituted “equal treatment”.

o The principled reason for this position was that groups of people who face structural and institutional barriers towards being able to compete on “equal terms” with others in society — for reasons that are historical, but whose effects are enduring — must be treated in a way that mitigates those existing conditions of inequality.

o Reservations — under this understanding — were a means to bring about genuine and true equality, and not a set of privileges or gifts.

♤ 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.

♤ As there are less avenues for the direct appointment in higher posts, reservations play a major role for the representation of backward classes in higher posts.

o According to a Parliament reply last year, only one of the 89 secretaries posted at the Centre belonged to the SC, while three belong to the ST. The court order may go against the substantive equality in higher posts.

♤ 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.