The Uttarakhand High Court on Reservations and Article 16(1)

A Full Bench of the Uttarakhand High Court has just delivered an interesting judgment on the question of reservations and Article 16(1) of the Constitution. In Dhananjay Verma v State of Uttarakhand, the issue before the High Court was a straightforward one: could the State provide reservations for a group of people who fell outside the category of backward classes of citizens who were not adequately represented in State services? In the present case, reservations had been provided for sportspersons domiciled in the state of Uttarakhand. Sportspersons, admittedly, did not fall within the scope of Article 16(4), which specifically authorises reservations in State services. Consequently, were they entitled to reservations – and if so, under which Article of the Constitution?

On the constitutional issue, Chief Justice Ranganathan – writing for the Full Bench – held that reservations under the Constitution are authorised not merely by Article 16(4), but also by 16(1) [“equality of opportunity”]. The reasoning of the Full Bench was straightforward: it had been clearly established by N.M. Thomas and Indira Sawhney that Article 16(4) was not an exception to Article 16(1), but a facet – or a restatement – of it. This meant that 16(4) did nothing more than give concrete expression to the principle already contained within 16(1) – the principle of substantive equality. For this reason, even in the absence of 16(4), reservations could be sourced from 16(1)’s guarantee of equality of opportunity, as long as they met the basic threshold of reasonable classification.

While this line of reasoning – and the conclusion – seems unexceptionable, Courts in India have been remarkably hesitant over the years in affirming this logical extension of the Thomas-Sawhney principle. In the pre-Thomas days, of course, when Article 16(4) was considered to be an exception to Article 16(1), the situation was different: as the Patna High Court held in Sukhnandan Thakur (1955), over a strong dissent by the Chief Justice, reservations for ex-freedom fighters were unconstitutional, as they did not fall within the scope of Article 16(4). Two years after Thomas, though, the Punjab & Haryana High Court, in Jagdish Rai, took note of how Thomas had radically altered constitutional jurisprudence. It upheld reservations for ex-armed forces personnel, on the basis that under Article 16(1), a “just proportion of the posts should be given to those who, because of a peculiar handicap, may not stand a chance against those not so handicapped.” 

After that, however, the development of law – until Dhananjay Verma restated it yesterday – has been almost negligible. Part of the reason for this, I would suggest, is that judges have balked at the potentially radical consequences of this doctrine. Not only does it open up the scope of reservations to any group that is faced with structural or systemic barriers, but also, as I have argued in The Transformative Constitution:

“… if the principles underlying Article 16(4) are now ‘facets’ of Article 16(1), then it must follow that—as Galanter realized immediately after the judgement in N.M. Thomas was delivered—an individual who feels that she has been substantively disadvantaged by reason of her group membership has a right to approach the Court and demand that this inequality be mitigated. Of course, this radically transforms the relationship between individual and the State, when it comes to questions of structural inequalities and substantive barriers to access. After N.M. Thomas, the State does not merely have the power to remedy these inequalities, but has a duty to identify and remedy them—a duty for which it is answerable in a court.” 

As Karan Lahiri has argued before on this blog, the concept of a “power + duty” is not foreign to Indian constitutional jurisprudence. It would, however, radically alter our understanding of Article 16, even though it is a logical consequence of Thomas/Sawhney. And interestingly, the Uttarakhand High Court’s Full Bench appeared to have balked at that conclusion as well, setting up an interesting tension within the judgment. Because after holding that reservations could be sourced to Article 16(1), the High Court nonetheless refused to issue a mandamus to the government directing it to implement the quota for sportspersons, and instead left the issue to the discretion of the government.

There are a few things to note about this. The first is that this makes the judgment internally contradictory: the Full Bench could not both have held that reservations were sourced from Article 16(1), and that the issue remained purely discretionary. This is because Article 16(1) is framed as a right (to equality of opportunity), and a right whose enforcement is at the discretion of the State is no right at all. Secondly, the Ranganathan CJ justified this view by invoking the separation of powers, and observing that a mandamus to the State to implement reservations would amount to legislation. While the High Court’s concern about the separation of powers is to be genuinely appreciated in an age where it seems to matter less and less, on this point – with respect – it got its wires crossed. As Lahiri has explained, the duty aspect of “power + duty” does not refer to a duty to carve out reservations, but a duty to collect the facts and evidence that will show whether or not reservations are required (for a particular group), upon the principles of substantive equality. The mandamus, therefore, would be limited to just that – something well within the scope of the separation of powers – and not a mandamus to legislate. And lastly, in NALSA v Union of India, the Supreme Court did order reservations for the transgender community, after it found that the community was disadvantaged along a host of parametres. Consequently, there existed precedent even for a judicial order of reservations following upon the relevant finding of substantive disadvantage and denial of equality of opportunity within the meaning of Article 16(1).


The Uttarakhand High Court’s judgment is a welcome and lucid restatement of the law. Its clear holding that Article 16(1) is the constitutional source of reservations – and that groups other than the 16(4) groups can be granted reservation subject to reasonable classification – has been long overdue. That said, however, the High Court stopped short: carrying through with its reasoning, it also ought to have clarified that reservations form part of the right to substantive equality, and that 16(1) imposes a duty upon the State at least to conduct the necessary data-gathering exercise that would serve as a pre-requisite towards implementing the promise of substantive equality underlying Article 16.

Perhaps that will be the task of the Supreme Court, if this judgment is appealed.

4 thoughts on “The Uttarakhand High Court on Reservations and Article 16(1)

  1. So, are you suggesting that the legislature can grant reservation under Art. 16(1) to any group and denomination which it feels has not been granted substantive equality of opportunity?

    And if so, then where does this meet to reservation stop? Like, consider this situation itself. If the Court had granted reservations to sportspersons then what was to stop people excelling in art or music or any other form of creative activity to ask for the quota?

    I used to think that the inherent reason behind providing quota was to do away with the past mistakes of atrocities against the class or caste community? But, if we extend it to the sportspersons then aren’t we taking away the essence of the Article itself?

  2. Whereas the bold reiteration of reservations under 16(4) being manifestations of principle underlying Art 16(1) must be applauded, at the same time it would be apt to focus upon the fallout of legal principle of “substantive equality” in all its possible forms. If reservations are part of the guaranteed right to equality of opportunity under Art 16(1) then not only spoortspersons, but even backward sections like “transgenders” “people residing in remote hilly areas with least facilities of modern life”and the like appear having legitimate reasons to demand their shares of reservation quota as fundamental right. If groups discriminated on caste grounds are eligible, so groups discriminated or marginalized on the basis of religion, race, gender, place of birth, etc also have a claim for such reservations as rights. When economic weakness is now a legitimate basis of reservational benefits after 103rd amendment of the Constitution, bringing overall vertical reservations to 60% can the march of other groups under Art 16(1) be curbed or curtailed in near future?

  3. Reservations are not exceptions but emphatic statements of equality, –so said the apex court long back in Thomas. In Indra Sawhney the apex court left scope for exceeding 50% ceiling on reservations in exceptional and justifiable situations. As the Central Government decided to exceed the 50% ceiling on educational and job reservations while making provision for special 10% quota for the Economically Weaker Sections by means of the 103rd Constitutional Amendment, now it has become a free walk for the entire political arena including in the states who have always felt helpless due to this judicial restriction. And now the Bombay High Court decision has put a firm seal of approval over the new legislative trend of bold bypassing of 50% ceiling rule as it has upheld the special quota provided in favor of Maratha community taking the total percentage of reservations to 78% (pre-existing 52% for SC,ST,OBC,SBC, Notified Tribes and De-notified Tribes; additional 10% for EBS and now 16% for Marathas). If we add additional quotas for Sports-persons and other such categories to this backwardness-based reservation quotas, where it would leave the “open seats” — the left-over seats for which the General Category (better be called the “exceptional” category in this milieu) candidates may compete? Was this the idea of “equality before the law” and “equal protection of laws” that the Constitution makers had envisioned and guaranteed in the Preamble to “We the people of India”? Dr.Ambedkar had expressed his premonition that one day the “exception” may eat up the rule itself, and perhaps we are proving it to be true today.

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