Reservation under Article 16(4) of our Constitution: Placing a ‘Power plus Duty’ upon the State

The jurisprudence on reservation in India is riddled with inconsistency. Courts have grappled with the interpretation of Article 16(4) of the Constitution, and have arrived at a plethora of outcomes, each more inconsistent than the last. In that vein, this article will substantiate two arguments. First, it will argue that our Supreme Court’s interpretation of ‘equality’ to mean substantive equality necessarily connotes the existence of a right to reservation, and that subsequent courts have ignored this interpretation to conclude, illogically, that our Constitution does not guarantee any such right. Second, it will argue that the Constitutional provisions concerning equality place a ‘power plus duty’ upon the state, in as much as they impose an obligation upon the state to undertake measures required to provide reservation to deserving sections of the Indian populace.

Our Constitutional Right to Equality is Substantive

The debate around reservation in India is primarily centred on Article 16(4), which allows the State to reserve posts in appointments and promotions to public services “for the benefit of backward classes of citizens, who, in the State’s opinion, are inadequately represented in the services”. Article 16(4) is often deemed a proviso to Article 16(1). Article 16(1) entrenches the right to equality in matters of public appointment, and has been regarded by the Supreme Court to be a specific application of the right to equality granted under Article 14 of the Constitution.

Initially, MR Balaji v. State of Mysore portrayed reservation as being antithetical to merit and equal opportunity. Consequently, Article 16(4) was declared an “exception” to the rule of equality embodied by Article 16(1). However, much water has flown under the bridge since then. Starting from NM Thomas, the Supreme Court, in a series of judgments, has adopted a reformed understanding of equality as accounting for structural and social disadvantages. Reservation has been considered a facet of the substantive (as against formal) right to equality under Article 14, and therefore, Article 16(4) has been considered an “extension” of Article 16(1).

Such equality no longer requires equal treatment for everybody. Conversely, it requires people living in different social strata and coming from diverse social backgrounds to be treated differently to achieve equality in Indian society. Indra Sawhney and Nagaraj have reinforced this view. We have therefore established two premises- first, that Article 14 reflects substantive and inclusive equality, and second, that Article 16(4) is an extension of such right to equality. It follows from these premises that deserving sections of our population have a right to reservation, flowing from their right to equality.

Painting Article 16(4) as an Enabling Provision: Undermining Substantive Equality

Contrary to this conception of reservation from a rights perspective, the Supreme Court in the 2020 judgement of Mukesh Kumar v. State of Uttarakhand opined that Article 16(4) was merely an “enabling provision” which accorded discretion to the State to provide reservation in matters of public employment, but which did not allow people to claim reservation as a matter of right. The court’s reasoning was predicated upon the three-pronged test laid out in Nagaraj.Nagaraj held that three preconditions had to be satisfied through the “collection of appropriate data” before the State could grant reservation: the data had to demonstrate the backwardness of a particular class, the inadequacy of representation of that class in the public services, and the maintenance of administrative efficiency as mandated by Article 335 of the Constitution. Simply put, for the State to determine the necessity of reservation, it has to engage in a data collection exercise to satisfy the above preconditions. When such data is collected and the three requirements answered in the affirmative, the fundamental right to reservation can operate. People can demand and enforce reservation as a fundamental right. On the other hand, if the State decided not to collect data altogether, the operation of Article 16(4) would be precluded entirely.

According to Mukesh Kumar, deciding whether data had to be collected was a prerogative power of the State- meaning that people could not demand the collection of requisite data as a fundamental right. The Supreme Court succinctly restated this position in 2022 by positing that the sine qua non for enforcing a writ of mandamus against the State was the existence of data demonstrating a need for reservation, without which members of backward classes had no legitimate claim to reservation in public posts. These two judgments have been used to argue against the existence of a right to reservation. They have resulted in an absurd scenario where the state is obligated to collect data before reserving seats- however, no such obligation rests if it chooses not to provide reservation at all. Therefore, by simply refusing to collect data, the State can extinguish the right to reservation.

This position of law is untenable. One, it makes the right to reservation subservient to the State’s data collection process. Second, it undermines the right to equality, as defined by established jurisprudence on the issue. Allowing the state to circumvent reservations would freely perpetuate the disabilities of backward classes by being in the teeth of substantive equality. Fundamental rights are entrenched in our Constitution to protect them from the vicissitudes of political power- Mukesh Kumar departs from this basic principle by making the fundamental right to reservation (and consequently, the right to equality) dependent upon the whims of the State.

The ‘Power Plus Duty’ Interpretation: Ensuring Coherence in our Jurisprudence

These constitutional fallacies can be avoided by interpreting Article 16(4) as placing what Karan Lahiri terms a “power plus duty” upon the state. That is, apart from enabling the state to provide reservations in furtherance of the constitutional goal of substantive equality, Article 16(4) should be deemed as imposing a duty upon the state to satisfy all preconditions necessary to allow the right under it to operate satisfactorily. In this particular case, the State would have a duty to collect requisite data, as required by Nagaraj and other subsequent judgments. Citizens would be allowed to move our Courts for the enforcement of a writ of mandamus directing the State to collect data when necessary. Courts could then direct states to institute high-powered Committees to collect data on the requisite criteria (a pertinent example is the Ratna Prabha Committee, which was empowered to propose reservation policies after quantitative data collection in Karnataka).

Jarnail Singh rescinded Nagraj to the extent of requiring data on the backwardness of a particular class. State Committees, therefore, would be required to collect data only on two criteria- the inadequacy of representation of a particular class in the State’s public services; and the attendant impact on the State’s administrative efficiency. They would need to collate data on the quantum of reservation currently being accorded to various classes, and determine its sufficiency. The population census conducted by the Centre would suffice for the purposes of such determination. Individual states need not conduct caste censuses, thereby precluding the debate on states’ competence to do so. Additionally, there are no definitive standards for gauging the impact of reservation on the State’s administrative efficiency. To assess efficiency, the Committees would have to scrutinise the functioning of the public department as a whole. Therefore, it is pertinent that these Committees possess considerable discretion in their modes of data collection. It is possible to conceptualise other data-collection frameworks as well. However, Expert Committees remain the most effective, as evidenced by prior experience.

Directive Principles of State Policy: Reinforcing the Imposition of a Duty on the State

The ‘power plus duty’ interpretation is also supported by Article 46 of the Constitution, a Directive Principle of State Policy. Couched in mandatory language, Article 46 provides that the State “shall promote the educational and economic interests of weaker sections of our society, to protect them from exploitation and social injustice”. The Directive Principles, while not being enforceable in courts of law, are still binding upon the State. Further, as Gautam Bhatia has demonstrated, Directive Principles play a pivotal role in defining the framework within which fundamental rights are interpreted. That is, they play a crucial role in informing and guiding the interpretation of fundamental rights.

This view has been derived from Keshavananda Bharati, which considered the balance between the Directive Principles and Fundamental Rights an inviolable part of our Constitution’s Basic Structure. Interpreting Article 16(4) in light of Article 46, it becomes evident that the State would no longer have discretion in reserving posts in the public services. Instead, the State would be duty-bound to determine whether reservation is required in a given social climate based on various criteria. This determination is possible only when the State has a duty to collect appropriate data. The presence of data would also enable deserving people to claim reservation as part of their fundamental right to equality.

Conclusion

This article has posited two arguments. First, it has argued that Article 16(4) of the Indian Constitution embodies a right to substantive equality. Second, it has argued that ensuring this substantive right would require the placing of a ‘power plus duty’ upon the State- wherein the State would be duty-bound to undertake all measures necessary to facilitate the operation of this right. Recent judgments of our Supreme Court have ignored the dicta and logical repercussions of previous judgments. It is pertinent that courts in future cases rectify these interpretational errors. This would buttress their function of upholding the fundamental tenets of our Constitution.

Additionally, while this article has reviewed Indian jurisprudence on substantive equality through the lens of Article 16(4), it is possible to extend these arguments mutatis mutandis to members belonging to other disenfranchised sections in our society. However, in cases where our Constitution does not explicitly provide for reserving seats for certain sections of the populace (for instance, the Muslim and the transgender communities), members will not be able to claim ‘reservation’ specifically in furtherance of their right to equality. Nevertheless, they can file petitions for writs of mandamus against the State for curbing inequality generally. In such cases, Courts can mandate the State to foray into other policy measures to ensure equality. Such an approach also fits within the ‘power plus duty’ framework.

Anushka PS is a second-year student at the National Law School of India University, Bengaluru.