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.
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