Thursday, December 03, 2009

Is Article 15(4) an enforceable right?

The Supreme Court's judgment in Dr.Gulshan Prakash v. State of Haryana (Delivered on December 2 by Justices K.G.Balakrishnan-P.Sathasivam-J.M.Panchal)is sure to create a controversy of sorts because of its ruling that Articles 15(4) and 16(4) are only enabling provisions, and therefore, the State can use its discretion not to enforce them. I am not going into the facts of the case, as readers can get them from the judgment available on the Supreme Court's site. My preliminary observations are as follows:

1. It is not clear how the Court concluded that if they are enabling provisions, no rights accrued from them.

2. The Court holds that the State can use its discretion not to enforce Article 15(4). But discretion is always coupled with duty, and therefore, enforceable. In an earlier case, (Nagaraj), the Court had laid down conditions to control discretion, when the State wants to introduce reservations under A.16(4). These are backwardness, insufficiency of representation, and efficiency of administration. In this case, however, the Court left the State's discretion not to introduce reservations uncontrolled and unregulated.

3. In N.M.Thomas, the Court said Article 15(4) is not an exception, but part and parcel of Article 15(1) and, therefore, aims to fulfil substantive equality. This was upheld in Ashoka Kumar Thakur case last year. Once A.15(4) is understood as a necessary ingredient of equality, it can't be separated from Article 15(1) and seen merely as an enabling provision. Why the Court thinks an enabling provision can't be enforced is not clear.

4. Articles 16(4),15(4) and 15(5) only explicitly say what is implicit in Articles 16(1) and 15(1) read with Article 14. Therefore, to consider the former as unenforceable rights, as the Court has done, is fallacious.

5. Take horizontal reservations for disabled persons under Article 16(1). The State cannot refuse to reserve seats claiming that it is also an enabling provision. The Court appears to suggest that Article 16(1) is superior to Article 16(4), and whereas the State is bound to reserve seats under Article 16(1), the State is not so bound under Article 16(4). Such an understanding is inherently flawed.

6. The Court appears to have understood the State's duty to reserve seats as opposed to the need to maintain efficiency under Article 335. Both are not contradictory.

8 comments:

Madhav Khosla said...

Dear VV,

I strongly disagree.

1. Just to be sure I understand your argument correctly, are you suggesting that persons should have the right to approach the court under Article 15(4) and argue that they are socially and educationally backward and that the State has not made any provision in their advancement?

2. Textually, there seems much to suggest that 15(4) is enabling whereas 14 is binding. 15(4) reads "Nothing in this article or in clause (2) or article 29 shall prevent the State..." where as 14 reads "The State shall not deny to any person equality..."

3. Please clarify this statement: "The Court holds that the State can use its discretion not to enforce Article 15(4). But discretion is always coupled with duty, and therefore, enforceable." Surely the legislature has discretion to enact laws on a range of issues. Article 15(4) operates like an item in one of the three lists. If Article 15(4) is enforceable, then we should be able to enforce the lists as well because that is discretionary and you argue that discretion is always enforceable.

3. I believe that the central point is that Article 15(4) does not vest rights in anybody. It articulate an asymmetric anti-discrimination principle within the Indian Constitution allowing the State to provide for affirmative action for certain communities should the State deem that a prudent policy choice. The vesting of rights doesn't take place - textually or historically.

The very purpose of an enabling provision is that it confers power on the State but not a duty. You seem to blur the distinction.

Look forward to hearing from you,
Madhav

Goutham said...

I strongly disagree as well.

You seem to assume that the only way the State can discharge its 'duty' to ensure the mandate of equality under Article 15(1) of the Constitution is through the provision for reservation under Article 15(4).

The mandate of 15(1) is to ensure equality and prevent discrimination; even if this is understood (as it has been) to require positive State action towards the achievement of these stated ends, it does not necessarily require such positive action to be in the form of reservations. That discretion as regards the mode of positive action to be adopted is left to the State, and Article 15(4) can be merely understood to make it explicitly clear that reservation is one such option available to the State.

The way I see it, a disadvantaged group may at best articulate a right to some form of positive State action if it is able to demonstrate that the State has done nothing at all to bring them to a level playing field. To argue that they can even claim as a matter of right that the mode of positive action for their betterment should take the form of a provision for reservation flies in the face of the constitutional text.

Regards
Goutham

Tarunabh Khaitan said...

i agree with goutham. i think 14 is broad enough (in light of its jurisprudence as well as directive principles) to impose positive duties on the state. but there is no duty to provide reservations, for there are many other possibilities of equality.

as one of the first courts to recognise positive duties in the constitution, our Supreme Court has done a relatively poor job of developing a sound jurisprudence around positive duties which takes institutional concerns seriously. there is a good deal of sophisticated jurisprudence in international law (under the ICESCR) and south african constitutional law on the nature of judicially enforceable 'rights' that positive duties may entail. primarily, positive duties do not allow judges to prescribe policy, but they do entail duty to protect (i.e. don't make the current situation any worse), duty to provide the 'minimum core' of the right, duty to take 'some' action (so, the state can't do nothing), and the duty to take that action 'reasonably' (for an action to be reasonable, it must satisfy some standard of 'priority', where the most deserving is the first beneficiary, etc) and a duty to ensure that the action is geared towards 'positive realisation' of that right. chapter 3 of sandra fredman's 'human rights transformed' provides a good summary. admittedly, these concepts have been developed in the context of socio-economic rights, but i think their potential lies not only in article 21 but also 14.

Tarunabh Khaitan said...

errata:
'positive realisation' = 'progressive realisation'

Madhav Khosla said...

Also VV, of course there can be provisions in Part III of the Constitution that do not vest rights: take Art. 13

Dilip Rao said...

VV,

I agree with Madhav that 15(4) and 16(4) is only an enabling provision and the state enjoys the discretion not to enforce them. Apart from the text which is very clear on this point, there is a line of CB judgments that have said so. C.A.Rajendran v. UOI (1967) explicitly held this to be the case w.r.t 16(4). N.M.Thomas did not reverse this position: the question of whether 15(4) is an explicit restatement of what is implied in 15(1) or not applies only with regard to how broadly (or narrowly) the reasonableness of classification under 15(1)/16(1) ought to be construed; it does not alter the meaning or implication of the non-obstante clause in 15(4)/16(4).

Also, I do not see any role for Art.335 here. The case pertains to post-graduate admissions, not government posts and the question of efficiency of administration does not arise.

ரவி ஸ்ரீநிவாஸ் said...

In Preeti Srivastav vs. state of UP (?) Supreme Court had questioned the need for reservations in super speciality courses.15(4) is an enabling provision and it is not mandatory to provide reservations at all levels or for all courses.The Indra Sawhney judgment nullified reservation in promotions for OBCS while the Nagaraj judgment laid the parameters for reservations in
promotions for SC/STs. I think this recent case has little to do with Article 335.

This interpretation is reasonable.
Even if there is a reservation/quota in PG medical courses Supreme Court can still intervene
if it finds that the state has gone beyond the parameters laid down in reservation. 15(4) does not mandate that all states should
uniformly provide reservations for SC/STs and OBCs.The court has made it clear that it cant compel a state to provide reservation for SC/STs in P.G courses and there is
reservation in U.G courses in that state.I think the issue would have been different had there been no reservation in U.G courses.Perhaps then the court would have looked at the issue from a different angle- underrepresentation and
social and educational backwardness of the communities affected by lack of reservation.

Anup said...

The debate between MP Singh (arguing that 15(4) and 16(4) are fundamental rights) and Parmanand Singh (arguing that they are not) in the SCC journal is extremely useful to understand the issues involved.

Both articles can be accessed on the EBC website:

M.P Singh -- (1994) 3 SCC (Jour) 33 -- http://www.ebc-india.com/lawyer/articles/94v3a2.htm

Parmanand Singh -- (1995) 3 SCC (Jour) 6 -- http://www.ebc-india.com/lawyer/articles/95v3a2.htm