Examining the Quota System through the Lens of Constitution

Focus Keyword: Quota System in Bangladesh

• Clauses (1) & (2) of Article 29 of the Constitution ensure the prniciple of equality of opportunity and non-discrimination in public employment and Article 29(3)(a) provides for an exception to that and gives the government the discretion to initiate/continue for special provision (affirmative action or positive discrimination) in favour of any backward section of citizens for securing their adequate representation in the service of the Republic.

• Equality of employment in the Republic in the terms of Article 29(1) read with Article 27 are exclusively guaranteed and therefore, quota system in favour of the backward section of citizens should not be arbitrary or unreasonable.

• The 56% quota is totally unfair, unjust and unreasonable and is against the concept of rule of law and therefore, unconstitutional. To some extent, it amounts to a mockery to merit and the principle of equality and non-discrimination.

Constitution, as the solemn expression of the will of the people, is the supreme law of Bangladesh.  As per the Constitution of Bangladesh, all powers in the Republic have to be exercised within the authority of the Constitution and any law of the land must be in consonance with the spirit of the Constitution. Therefore, in the wake of the recent controversy with respect to the equality of opportunity in public employment, the quota system has to be looked through the lens of constitutional provisions. Of 18 fundamental rights of the Constitution, the right to equality of opportunity in public employment is of particular importance given the fact of a youth dominated demographic trend.

Clauses (1) & (2) of Article 29 of the Constitution ensure the equality of opportunity and non-discrimination in public employment and Article 29(3)(a) gives an exception to that and allows the state to initiate/continue for special provision (affirmative action or positive discrimination) in favour of any backward (under privileged) section of citizens for securing their adequate representation in the service of the Republic. Article 29(3) of the Constitution is a non-obstante clause for the purpose of removing conflict with the main provision of this Article. However, Article 29(3) does not confer any right on anyone, nor imposes any constitutional duty on the State to make the reservation.[1] Article 29(3)(a) of the Constitution that provides for quota system in the employment of the Republic cannot override the main spirit of this Article which is clearly provided in its heading. Regarding the effect of non-obstante clause, the clear interpretation given by the Indian Supreme Court in the case of R.S. Raghunath vs. State of Karnataka is pertinent to mention here:

“The non-obstante clause is appended to a provision with a view to give the enacting part of the provision an overriding effect in case of a conflict. But the non-obstante clause need not necessarily and always be co-extensive  with  the operative part so as to have the  effect  of cutting down the  clear  terms of an enactment and if the  words  of the enactment are clear and are capable of a clear interpretation  on a plain and grammatical construction of  the  words, the non-obstante clause cannot cut down the construction and restrict the scope of its operation.”[2]

Thus, in the light of Article 29(3)(a) of the Constitution, it can be said there is no scope to justify indiscriminate quota system in the name of helping the backward section of citizens.

The Indian Supreme Court determined the percentage of quota or reservations in several decisions. In the case of M. R. Balaji vs. Mysore, the honorable Court put a 50% limit on reservations. [3] In 1963, the Indian Supreme Court in T. Devadasan vs. The Union of India held that reservation in excess of 50% would be unconstitutional.[4] In 1992, The Supreme court of India in Indira Sawhney & Ors vs. Union of India upheld implementation of separate reservation for ”Other Backward Classes” as to central government jobs are concerned. The ruling was implemented accordingly. In this landmark decision, it was also held that reservation in excess of 50% would be unconstitutional. [5]

Clauses (1) & (2) of Article 29 of the Constitution bear the operative parts of the provision that clearly state, the right of equality of opportunity in the public employment is guaranteed by the Constitution. Moreover, since the equality of opportunity in the public employment is a specific fundamental right of citizens guaranteed under Article 29 of the Constitution, in case of violation of this right, a citizen has a constitutional right to move to the High Court Division in accordance with Article 102(1) of the Constitution for the enforcement of this right.[6]

There is no specific Article in the Constitution providing for reservation of seats/quota in the public employment. In addition, Article 27 of the Constitution guaranteed that every citizen shall be equal before law and it is a fundamental right which is inalienable and irrevocable in nature. However, Article 29(3) cannot affect the spirit of Article 27. Equality of employment in the Republic in the terms of Article 29(1) are guaranteed and therefore, it should go with the spirit of Article 27. Thus, quota system in favour of the backward section of citizens should not be arbitrary or unreasonable and it should follow the principle of equality and non-discrimination.

From the view of long context of unemployment problems in Bangladesh, there is no scope to justify quota in public employment in a broad sense under Article 29(3)(a) of the Constitution. In this connection, we need to read Articles 15(d) and 29(1) simultaneously, according to the Article 15(d), it shall be a fundamental responsibility of the state to secure to its citizens the right to social security – that is the right to public assistance in case of undeserved want arising from unemployment. Thus, the government should comply with the provision of Article 15(d) read with Article 29(1) of the Constitution. In this regard, Indian Supreme Court in the case of ABSK Sangh vs. Union of India held that fundamental principles of state policy are a guide to interpretation of the constitution, they are to be kept in view while interpreting the provisions relating to the fundamental rights.[7]  On the other hand, in light of Article 47(1)(f) of the Constitution, the government for the purpose of giving effect to Article 15(d) of the Constitution as the fundamental principle of state policy can make law for extinction, modification or restriction of the quota in public employment, which has been mentioned in Article 29(3)(a) of the Constitution, and such law shall not deemed to be void on the ground that it is inconsistent with, or takes away or abridges, any of the rights guaranteed by the Part III of this constitution. In case of conflict between the fundamental principles of state policy and fundamental rights, the court will try for a harmonious interpretation so as to give effect to both.[8]

Recently, Bangladesh has fulfilled the eligibility requirements to graduate from “Least Developed Country” to “Developing Country” status. Accordingly, to make a prosperous nation, the government shall endeavor to ensure equality of opportunity for all citizens in every sphere of national life as enshrined in Article 19 of the Constitution. However, Article 29(3)(a) of the Constitution that gives the government the discretion to make reservation/quota in the employment of the Republic in a reasonable manner is also an exception to the current provision of Article 19 of the Constitution.

The final observation is that the recruitment in the civil service of the Republic based on existing 56% quota system as opposed to merit is directly contradictory to Articles 27 and 29 that respectively guarantee equality before law and equality of opportunity in public employment. Although Article 28(4) provides for some special provision for women, children and backward section of citizens, the 56% (more than 50%) quota is totally unfair, unjust and unreasonable and is against the concept of rule of law and therefore, unconstitutional. To some extent, it amounts to a mockery to merit and the principle of equality and non-discrimination.

Footnotes:

[1]  Mahmudul Islam, Constitutional Law of Bangladesh, 3rd Edition, May 2012, Mullick Brothers, p. 230.

[2]  AIR 1993 SC 81

[3] AIR 1963 SC 649

[4]  AIR  1964 SC 179

[5] AIR 1993 SC 477

[6]  Constitution of Bangladesh, Article 44.

[7]  AIR 1981 SC 298

[8]  AIR 1958 SC 731