Reservation as a Fundamental Right: Interpretation of Article 16(4)

30 Pages Posted: 29 Jun 2021

Date Written: June 14, 2021

Abstract

This article critiques the approach of treating Article 16(4) as a mere enabling provision. It argues that Article 16(4) should be considered a fundamental right, because of judicial interpretation given in the cases of State of Kerala v. NM Thomas (1975) and Indra Sawhney v. Union of India (1992). I argue that these judgments renewed the constitutional understanding about Article 16(4), which had taken a backseat due to a series of judgments during the first two and half decades after the enactment of the Constitution. I further state that the judicial approach of still treating Article 16(4) as an enabling provision is a result of breach of the precedent in Indra Sawhney. I add that the fundamental right to seek reservation is available to Scheduled Castes (SCs) and Scheduled Tribes (STs) by default, while it would be available to Other Backward Classes (OBCs) after fulfilling the conditions propounded in Indra Sawhney.

Keywords: Constitution, Reservation, Article 16, Supreme Court

Suggested Citation

Bhaskar, Anurag, Reservation as a Fundamental Right: Interpretation of Article 16(4) (June 14, 2021). Available at SSRN: https://ssrn.com/abstract=3868419 or http://dx.doi.org/10.2139/ssrn.3868419

Anurag Bhaskar (Contact Author)

Jindal Global Law School ( email )

Jindal Centre 12 Bhi12 Bhikaiji Cama Place
Near Jagdishpur Village
Sonipat, Haryana 131001
India

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
491
Abstract Views
1,964
Rank
109,721
PlumX Metrics