Recently, in two cases the Supreme Court of India held that there is no
Fundamental Right to Reservation. Firstly, in the case of Mukesh Kumar V.
State of Uttarakhand
. In this case, an appeal was filed before the
Supreme Court of India regarding the reservation in promotion to the Scheduled
Caste and Scheduled Tribes in Public Services. It was held by the Court that
there is no fundamental right to the Reservation in the promotion to Claim by
Secondly, All Political Parties from the State of Tamil Nadu filed a Writ
under Article 32 regarding the non-implementation of Reservation of
Medical Seats for Other Backward Classes (OBC) Candidates Contributed by the
State of Tamil Nadu to the All India Quota. The Supreme Court bench laid by
Justice Nageswara Rao held that there is no fundamental right to Reservation.
Hence, a petition filed under Article 32 is not maintainable and directed them
to file the petition in the High Court of Madras .
Whether the Right to Reservation is an Exception to Fundamental Rights
Enshrined under Part III of the Constitution of India?
What is meant by Reservation?
Reservation is a process of reserving a certain percentage of Seats for certain
Communities Such as Scheduled caste, Scheduled Tribes, Other Backward Classes,
etc.… in Government Educational Institutions, Government Jobs, Legislative
History of Reservation
The Reservation had its Origin from the age-old Caste System.
- Initially, the idea of Caste-based Reservation was conceived by William
Hunter and Jyoti Rao Phule in 1882.
- In 1933, Communal Award was Presented by Ramsay Macdonald. In that Award
Separate Electorates for Muslims, Sikhs, Dalits, Indian Christians, Anglo
Indians, and Europeans got Introduced.
- The Communal Award was not Accepted by Mahatma Gandhi. Hence, the Poona
Pact was Signed in the Year 1932. In that, it was decided that there would
be no separate electorate for Dalits but a reservation within Hindu
- In 1943, Government Accepted the Memorandum Submitted by DR. B.R.
Ambedkar, and the Reservation for Scheduled Castes in Services became
(New Clause to Article 15 and 16)
- The Decision held in the case of State of Madras V. Champakam
Dorarirajan  paved the way for the Insertion of a new Clause under
Article 15 [i.e. Article 15(4)]. In this case, State Government Reserved
Certain Seats in State Medical and Engineering Colleges for certain
Communities and State Government Reserved the Seats to enact Article 46 of
the Indian Constitution. The Court held that the Reservation is void because
it discriminated against people on the grounds of religion and Caste & it
was also held that Directive Principles of State Policy cannot override the
Fundamental Rights. Hence, to modify this decision Article 15(4) was
amended . Under this Clause, the State Government can make Special
Provision for the advancement of any Socially and Educationally Backward
Classes or Scheduled Caste or Scheduled Tribes.
- Similarly, Article 16(4) Enables the State Government to make provision
for Reservation of Public post for any backward Classes which, is not
adequately represented in the Services of State. Article 16(4-A) was also
inserted . It enables the State Government to make Provision for
Reservation in the matters of Promotion of Scheduled Caste and Scheduled
Tribes which, are not adequately represented in the services of State.
- Initially, Reservations were only Provided for Scheduled Caste and
Scheduled Tribes. Later, Other Backward Classes were also included in the
Reservation on the Recommendation of the Mandal Commission.
Reservation- A Directive Principles of State Policy
According to Article 46 of Directive Principles of State Policy, the State has
to promote the Educational and Economic Interests of Scheduled Caste and
Scheduled Tribes with Special Care and to protect them from all forms of
Injustice and Exploitation. We cannot eliminate this duty just because it is a
Directive Principle of State Policy, in Minerva Mills V. Union of India  the
Supreme Court held that the Indian Constitution is founded on the bed-rock of
balance between Directive Principles of State Policy and Fundamental Rights and
it is also an essential feature of the basic structure of Indian Constitution.
Reservation- A Fundamental Right
In the Landmark case of T. Devadasan V. Union of India
, Justice Subba Rao
held that the Reservation is not an Exception to the Fundamental Rights but a
part and parcel of Fundamental Rights. He also held that without reservation
there is no equality of Opportunity. Right to Equality would be Meaningless if
unequals are Treated Equally. The Rule is that the Like Should be treated alike
and not that unlike Should be treated alike .
Followed this decision, In Indra Sawhney V. Union of India
 Famously Called
as Mandal Commission case, it was held that Article 16(4) is not an exception to
Fundamental Rights but a part of it, and also Supreme Court by 6:3 majority held
that sub-classification under Backward Classes can be done.
According to the above-mentioned cases, Right to Reservation is not an Exception
to Fundamental Rights but a part and parcel of it.
The main aim of Reservation is to ensure the adequate Representation of Backward
Classes, Scheduled Caste, and Scheduled Tribes, etc... in Government jobs,
Educational Institutions, etc... & to create a level playing field for them. Like
Justice Subba Rao Said Without Reservation, there is no Equality. If Reservation
Right is not given to these Communities as a Fundamental Right then there will
be no equality and they will be remaining in the Lower Ladder itself. There is a
Chance of depriving their Rights and Exploitation. It is a Gross Injustice in my
The decision held in Mukesh Kumar V State of Uttarakhand
and State of
Tamil Nadu V. Union of India
(on 26th October 2020) will come under the ambit of
‘Law’ under Article 13(3)(a) . So, it is Void under Article 13(2) which says
that the State  shall not make any law which takes away or abridges the
Right Conferred by the Part III and any law made in contravention of this Clause
shall, to the extent of the contravention, be void.
- Prahlad G. Jogdand, Dalit Movement in Maharashtra, (Kanak Publications:
New Delhi: 1991) 57.
- AIR 1951 SC 226
- 1st Constitutional Amendment,1951
- 77th Constitutional Amendment, 1995
- AIR 1980 SC 1789
- AIR 1964 SC 179
- Dr. V. N. Shukla- Constitution of India, p. 27(5th edition)
- AIR 1973 SC 477
- According to Article 142 of the Indian Constitution, a decree or order
passed by Supreme Court Shall be enforceable throughout the territory of
India. So, it will come under the ambit of Article 13(3)(a).
- In A.R. Antulay V. R.S. Nayak, where it has been held that the court
cannot pass an order or issue a direction which would be violative of
fundamental rights of citizens, it can be said that the expression “State”
as defined in Article 12 of the Constitution includes judiciary also.