Judicial review of reservation in promotion: A fading promise of equality in services guaranteed by the Indian constitution

Sarkar, Arpita (2018) Judicial review of reservation in promotion: A fading promise of equality in services guaranteed by the Indian constitution. NUJS Law Review, 11 (2). pp. 213-236. ISSN 0975-0207

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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.

Item Type: Article
Keywords: Supreme Court of India | Indra Sawhney | Article 16(4-A)
Subjects: Social Sciences and humanities > Social Sciences > Law and Legal Studies
JGU School/Centre: Jindal Global Law School
Depositing User: Mr. Syed Anas
Date Deposited: 04 May 2022 11:14
Last Modified: 04 May 2022 11:14
Official URL: http://nujslawreview.org/2018/08/05/judicial-revie...
Additional Information: I wish to express my gratitude to Prof. (Dr.) Mahendra P. Singh for his constant guidance with my research. I am also grateful to Mr. Siddharth for his comments which helped me immensely in writing this paper and also my colleagues in Centre for Public Law and Jurisprudence of O.P. Jindal Global University for their insights.
URI: https://pure.jgu.edu.in/id/eprint/2832


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