Issue 359 - 24/07/2020

32 24/07/2020 NEWS LITERATURE POLITICS FASHION ART & CULTURE KIDS RELIGION FILMS
www.samajweekly.com
Recent Approach of the Supreme Court
of India on Reservation
After numerous decades, the order
given by the Supreme Court of India,
“reservation is not a fundamental
right” has sparked an ardent political
debate and unrest among backward
communities. In this article, the
author shall explain what was the
view of the Supreme Court in earlier
judgments regarding the reservation.
Accordingly, the author shall explain
if the right to the claim reservation is
not a fundamental right, then what is
the status of reservation.
On 11th June 2020, in the case of
Umedsinh P. Chavda vs. Union of India
and Ors., the political parties of Tamil
Nadu challenged the policy of Central
Government according to which the
Central Government has decided to not
give the reservation to the Other
Backward Classes (OBC). A petition
was filed under article 32 of the Indian
Constitution under the argument that the
fundamental rights of OBC candidates
are violated. However, the Supreme
Court of India held that the reservation
is not a fundamental right and hence this
petition cannot be filed under article 32
as article 32 is available only for violation
of a fundamental right. Therefore, a
three-judge bench led by justice L.N.
Rao ordered the petitioners to withdraw
their petitions.
In February 2020 as well, the
Supreme Court of India observed the
same in the case of Mukesh Kumar and
Anr. vs. The State of Uttarakhand and
Ors. In this case, the argument of
reserved category candidates was given
under the decision of M. Nagraj vs. UOI
(2006) that the government of
Uttarakhand has not given reservation
to Scheduled Castes and Scheduled
Tribes whereas the State is bound to
give reservation according to the report
submitted in M. Nagraj Case which said
about unsatisfactory of SCs and STs in
Mumbai : With the panic surrounding
the Covid-19 pandemic
starting to subside in Europe,
Switzerland has opened its doors for
global tourism, but not for India, an
official said here on Thursday.
From July 20, in tune with
European Union guidelines,
Switzerland lifted restrictions for
travelers from 21 countries, besides
the European nations, though India -- currently
ranking third on the world Corona dashboard -
- has been excluded. However, travellers from
certain regions will be quarantined for 10 days
after entering Switzerland, one of the few
nations in the world which has managed to control
the impact of the pandemic. "We have not
finalised any date for India yet. As for the isolation,
the travellers will have to go into selfpaid
quarantine," said a spokesperson for
Switzerland Tourism in Mumbai. Besides
opening the borders and gradually relaxing the
rules, the country’s tourism board has initiated
a ’Clean & Safe’ campaign with tourism establishments
joining to create a ’Clean & Safe
Label’ indicating they are committed to comply
with the protection plans, said Switzerland
Tourism India Deputy Director Ritu Sharma.
She said a total of six industry-specific labels
are available for hotels, restaurants, navigation
companies, cable cars, public transportation
and meeting facilities. Earlier on June 15,
Switzerland had opened itself for travellers
from the Schengen zone and others, and it now
includes a total of nearly four-dozen big and
small countries around the world, with plans to
government jobs that time. In this case,
the honorable Supreme Court of India
put on the decision given in the case of
Ajit Singh vs. the State of Punjab (1999)
where it was made clear that under
Article 16(4) and Article 16(4-A), does
not give any fundamental right in reservation
in promotion. In Ajit Singh s
case, where the case of C.A. Rajendran
vs. UOI (1968) was also discussed and
here it was said that the State government
would not be ordered for giving
reservation by the courts. Even in the
case of M.R. Balaji vs. State of Mysore
(1963), Article 16(4) and Article 16(4-
A) were supposed as enabling provisions.
After relying upon previous verdicts
of this Court of law, the Supreme
Court held in the case of Ajit Singh that
article 16(4) and 16(4-A) are in the
nature of enabling provisions, conferring
a discretion on the State
Government to contemplate providing
reservations, if instances so warrant. It
is established law that the state government
could not be dictated for the nomination
in public posts.
Hence, by the case of Mukesh
Kumar, the Supreme Court made it clear
that the government can ignore the
report of any committee, however, if the
State government want to give reservation
to any class then the government
will have to collect quantifiable data for
the meagerness of the portrayal of that
class in public services. If the pronouncement
of State Government to
provide reservations to promotion is
confronted, the State concerned shall
have to place before the Court, the vital
computable facts and mollify the court
that such reservations became obligatory
on account of the scantiness of representation
of SCs and STs in a specific
class or classes of posts without distressing
the general efficacy of administration
as delegated by the article 335 of
the Indian Constitution.
Court also emphasizes on the verse
of article 16(4) and 16(4-A) and said
these articles sanction the state to make
a reservation in matters of selection and
Switzerland opens for global
tourists, but not for INDIA
further open up gradually.
These include: Schengen Zone: Austria,
Hungary, Norway, Belgium, Iceland, Poland,
Czech Republic, Italy, Portugal, Denmark,
Latvia, Slovakia, Estonia, Liechtenstein,
Slovenia, Finland, Lithuania, Spain, France,
Luxembourg, Sweden, Germany, Malta,
Greece, the Netherlands. The other countries
are: United Kingdom, Algeria, Andorra,
Australia, Bulgaria, Croatia, Cyprus, Canada,
Georgia, Ireland, Japan, Monaco, Morocco,
New Zealand, Romania, Rwanda, San Marino,
South Korea, Tunisia, Thailand, Uruguay and
The Vatican. With a population of around 8.50
million -- roughly equivalent to the number of
daily commuters in Mumbai suburban trains --
Switzerland has notched 34,000 Covid-19
cases, including 1,972 fatalities, as per the
Worldometer dashboard. Switzerland Tourism,
a federal public corporation formed in 1994,
opened its first branch in India in Mumbai
(1977) followed by Delhi (2000), and has operations
in 28 countries.
promotion in favor of SCs and STs if in
the view of the state they are ineffectively
epitomized in the services of the
State. It is for the State Government to
resolve whether reservations are
required in the matter of selection and
promotions to public posts. The language
of Article 16(4) and 16(4-A) is
clear and according to which, the inadequacy
of representation is a matter within
personal approval. In the case of
Mukesh Kumar, the court also said that
no one has the fundamental right to
claim the reservation and for being it
enforced the court cannot issue a writ of
mandamus.
In the case of Common Cause vs.
Union of India (2003), the honorable
Supreme Court of India held that for
exercising discretionary power, a writ of
mandamus cannot be issued.
It is also questioned that if the State
is not giving reservation the state must
express there is a satisfactory representation
or not. The court said that not
being certain to provide reservations,
the state is not mandated to rationalize
its pronouncement based on quantifiable
data, showing that there is a satisfactory
representation of members of
SCs and STs in State services.
In the case of Suresh Chand Gautam
(2016) the court made it clear and held
that no mandamus can be dispensed by
the court to the state to accumulate
quantifiable data concerning to an adequacy
of representation of SCs and STs
in public services.
There are several reasons people
argue reservation is a fundamental right.
Two of them are:
Those people say reservation is a
fundamental right they rely on two
cases judgments, the first one is Jagdish
Lal VS. the State of Haryana and 2nd
one is Ashok Kumar Gupta vs. State of
U.P. In these cases, it was observed that
Lucknow : Congress General
Secretary Priyanka Gandhi
Vadra has once again targeted
the Uttar Pradesh government
over the lack of health
facilities in the state,
saying Chief Minister
Yogi Adityanath is
more interested in hiding
his failures, rather
than improving the
condition of hospitals.
Priyanka Gandhi
uploaded a video on her
Twitter handle with her
tweet. In the video,
people are seen working in a
hospital filled with water. She
wrote: "Health facilities should
have been improved at a time
when coronavirus is spreading
fast. But this is the condition of
Mahoba’s Women’s Hospital.
You must have seen the chaotic
conditions in hospitals of
Bareilly, Lucknow. The CM,
who is boasting about good
health facilities, is interested in
reservation is a fundamental right.
Some people believed that article
16(4) comes under part III (articles 12-
35) of the Indian Constitution, which
itself deals with fundamental rights,
then why reservation does not come
under the fundamental right.
By taking these two arguments only,
in the case of Ajit Singh article 16(4)
and Article 16(4-A) were discussed and
was said that these two articles open
with a non-obstante clause. There is a
noticeable variance in the language
employed in Article 16(1) on the one
hand and Article 16(4) and Article 16(4-
A). There is no order or command in
Article 16(4) or Article 16(4-A) as in
Article 16(1). Hence, both Article 16(4)
and 16(4-A) are only empowering provisions.
It means that if in article 16(4)
and 16(4-A), it is written that notwithstanding
anything in this article, State
shall provide reservation then only
reservation can be regarded as a fundamental
right.
In the case of Ajit Singh, inappropriately,
all the verdicts of larger benches
were not fetched to the notice of the
bench which decided Ashok Kumar
Gupta and Jagdish Lal and to the benches
which followed these two cases.
Because of the devastating authority
right from 1963, we hold that both
Articles 16(4) and 16(4-A) do not deliberate
fundamental rights nor do they
execute any constitutional duty to the
State. Thus, the court said that Jagdish
Lal and Ashok Kumar Gupta cases are
per encuriam i.e. do not lay down the
regulation appropriately.
It has made clear from the above
cases that the right to claim reservation
is not a fundamental right. However,
this can be said as a statutory or legal
right because, for supporting the provisions
of reservations any law, rule or act
can be used.
UP CM more interested in hiding
his failures, says Priyanka
hiding these conditions, not
improving them."
Earlier, she wrote that there
are reports of beds being full in
government hospitals in
Lucknow and Gorakhpur, the
two major cities of Uttar
Pradesh.
She said cases of coronavirus
are increasing day by day and
this situation in hospitals is worrying.
Concerns were raised
before the government three
months ago, but sadly this is the
reality today, the Congress
leader said.