Judicial Review of Reservation in Promotion: A Fading Promise of Equality in Services Guaranteed by the Indian Constitution

Judicial Review of Reservation in Promotion: A Fading Promise of Equality in Services Guaranteed by the Indian Constitution

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Volume 11 Issue 2 ()

This paper argues that the Supreme Court of India has been sceptical about reservation in promotion since the State began making promotion policies in employment. The reasoning provided by the Court during the period from 1960s leading to the Indra Sawhney decision will reflect that the opinions of judges were premised on ‘what would be’ the effect of reservation in promotion or ‘what ought to be’ the contours of reservation as opposed to what is provided for in the Constitution. Subsequently, with introduction of more explicit amendments in the Constitution regarding promotion, the Supreme Court has only expanded its scope of judicial review. Invoking a rigorous form of judicial review akin to the strict scrutiny principle, the Supreme Court has since, struck down reservation policies for promotion on the ground of non-fulfilment of ‘objective’ prerequisites including proof of backwardness, under-representation of communities in services and administrative efficiencies. These prerequisites were actually and only meant to be for the subjective satisfaction of the State. However, the aggravated level of judicial review on this issue has resulted in the turning of Article 16(4-A) into a hollow promise which merely exists in the text of the Constitution of India.

Cite as: , Judicial Review of Reservation in Promotion: A Fading Promise of Equality in Services Guaranteed by the Indian Constitution, 11 NUJS L. Rev. () (Working Citation)

Disclaimer: All articles of Issue 11 (2) of the NUJS Law Review will be released online once the print copy is out