Thursday, December 3, 2009

[ZESTCaste] Govt cannot be forced to give quotas: Supreme Court

Govt cannot be forced to give quotas: Supreme Court

New Delhi December 3, 2009
The Supreme Court on Wednesday held that citizens belonging to
backward classes, including scheduled castes (SC) and scheduled tribes
(ST), could not move courts to force the government to provide them

A three-judge bench comprising Chief Justice K.G. Balakrishnan,
Justice P. Sathasivam and Justice J.M. Panchal noted that the
government was the best judge to take a decision on reservation and it
could not be claimed as a matter of fundamental right.

Dismissing petitions seeking a direction to the Haryana government to
provide reservation to SCs and STs in post-graduate medical courses,
the bench pointed out that it was for the state governments to decide
whether to provide reservation or not.

"In our view, every state can take its own decision with regard to
reservation depending on various factors," the bench observed.
"Article 15(4) (of the Constitution) does not make any mandatory
provision for reservation and the power to make reservation under
Article 15(4) is discretionary and no writcan be issued to effect
reservation," the bench held.

The bench accepted the contention of the state government that Article
15(4) - whichprovided for reservation in educational institu-tions -
was merely an "enabling provision"which entitled the government to
provide forreservation. Though the judgment pertained to reserva-tion
in educational institutions, Article 16(4)which provided for
reservation in public employment was also couched in a simi-lar

The bench specifically recorded in its judg-ment that "sub-clause (4)
in both Articles 15and 16 is only an enabling provision for the
stategovernment to bring forward legislation or passan executive order
for the benefit of socially andeducationally backward classes of
citizens andfor the Scheduled Castes andScheduled Tribes".

Thus, a policy decision to pro-vide reservation, unless unreason-able,
would be protected by arti-cles 15(4) and 16(4) from beingassailed
before courts but a peti-tion could not be filed to force
thegovernment to provide reservaprovide for mandatory reservation.

Holding that Article 15( 4) did not make a mandatory provision for
reservation, the bench pointed out that the principle behind the
provision was that " preferential treatment can be given validly when
the socially and educationally backward classes need it". It further
accepted the contention that the state government was the competent
authority to decide the reservation in the state.

The petitioners, who had challenged the decision of the state
government not to provide reservation in post- graduate medical
courses, had pointed out that several states had provided reservation
to SCs and STs at the postgraduate level. They pointed out that the
All India Institute of Medical Sciences also provided reservation to
SCs and STs in post- graduate medical courses.

The bench rejected an argument that the state government was bound to
follow the policy of the central government which had provided for
reservation in postgraduate medical courses. Rejecting the argument,
the court said " the same ( policy) automatically cannot be applied in
other selections where state governments have the power to regulate."
Article 15( 4) states that the government could not be prevented from
" making any special provision for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled Castes
and the Scheduled Tribes". Though it gives the state ( government) the
right to provide reservation for the backward classes, it does not
give the latter a corresponding right to claim reservation as a right.

Opposing the petition, the state government had argued that it had
taken a conscious decision of not providing reservation to SC/ ST
categories in admission at the post- graduate level and " such a
decision of the government suffers no infirmity". The state government
said the matter regarding reservation of seats in the PG courses had
been considered by it from time to time and the decision had been
taken keeping in view the recommendations of the Medical Council of
India and decisions in some other states.

" Since the government of Haryana has decided to grant reservation for
SC/ ST categories/ backward class candidates for admission at MBBS
level i. e.

undergraduate level then it does not mean that it is bound to grant
reservation at the postgraduate level also," Justice Sathasivam, who
wrote the judgment for the bench, said.

Though the court dismissed the petitions, it said Haryana government
would, however, be free to reconsider its decision. " However, we make
it clear that irrespective of above conclusion, the state of Haryana
is free to reconsider its earlier decision, if it so desires, and
circumstances warrant in the future years," the bench clarified.

The word of law
Article 15: Prohibition of discrimination on grounds of religion,
race, caste, sex, birth place 15( 4) Nothing in this Article... shall
prevent the state from making any special provision for the
advancement of any socially and educationally backward classes of
citizens or for the SCs and the STs.

Article 16: Equality of opportunity in public employment 16( 4)
Nothing in this Article shall prevent the state from making provisions
for the reservations in favour of any backward class of citizens,
which the state feels are not adequately represented in the services
under the state.

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