Supreme Court Upholds Reservations in Promotions

Supreme Court, as they say, is ‘Supreme’ not because it is infallible but because it is ‘final’. However, in a number of cases, we find that more confusion than clarity has been created by the Supreme Court. Be it regarding the management quota in the or even reservations in the government jobs.   On the issue of the reservation, the Supreme Court has been giving varying opinions in different cases. In Indira ‘Sahni vs Union of India’ case, which was filed immediately after the implementation of Mandal Commission report, the Supreme Court that (a)reservations in the public sector jobs cannot exceed more than fifty per cent. But when some state governments like; Karnataka and Tamilnadu provided for reservations up to, it was justified on archaic grounds; (b) those among backwards belong to the creamy layer would not be able to avail the benefits of reservations.

Another important factor which has been of great debate and discussion is that once a person has availed the facility of reservation at the time of appointment should not be able to get it for the promotion. This matter was bitterly fought but the Government of India set it to rest by amending the Constitution and inserting 4A to the article 16 in 1995 which authorised consequential seniority in cases of reservations in promotions for scheduled castes and scheduled tribes. However, in 2007 Supreme Court said in the case of N. Nagraj that reservation in the promotion cannot be allowed which affects the working capacity of those who have been deprived of the promotion, but it was related to OBCs.  Again in 2002, the Government of Karnataka enacted a law stipulating that consequential seniority would follow upon the promotions of SC/ST employees, which, in a sense means that if a reserved category employee was promoted before a more senior colleague by virtue of his or her belonging to the reserved category than in the higher level post the person would be senior to others.

In 2017 in B.K. Pavitra – I the Supreme Court then found that the Karnataka law did not comply with M. Nagaraj and was therefore unconstitutional. In response, to that, the Karnataka government commissioned a study which is known as the ‘Ratna Prabha Committee Report’, and based on the results of the study, re-enacted the earlier law. It was again challenged in the Supreme Court saying that the government has overruled the law for which it had no permission as per the judgement of B.K. Pavitra – I. It was argued that the bill had been wrongly sent for Presidential assent. And it was also argued that the law was unconstitutional because it failed to exclude the ‘creamy layer.’ The Supreme Court observed at the beginning of the judgment that this was the first time in the post-Nagaraj era that the Court was explicitly asked to rule upon the State’s data-gathering exercise, which was now a constitutional pre-requisite for any law aiming to implement reservations. It was also argued that the Ratna Prabha Committee Report was flawed because, inter alia, its methodology was either incorrect or insufficient (in many respects, such as measuring inadequacy against sanctioned posts instead of filled posts, that it was not cadre-based, and so on), and because the reports on efficiency were only general in nature but it was submitted by the other side that it was the State that was in the best position to ‘define and measure merit’.

The Supreme Court noted that the State was tasked with promoting substantive equality under the Constitution through the vehicle of reservations. Applying these principles, the Report was based on sampling methods that were broadly accepted among social scientists. There was no evidence that extraneous or irrelevant material had been used. Beyond that assessment, it was not for the Court to hold that the Report was invalid because the best (or substantially better) methods were available, that had not been used. And on the basis of the Report, it was open to the legislature to hold that a disparity between the population percentage of SC/STs, and their representation in the services, was the basis for determining ‘inadequacy of representation.’ The Court adopted a deferential attitude towards the State’s collection of data and its inferences from the data it had collected. The reason for this, the Court held, that the purpose of the exercise was for the legislature to be able to effectively advance the constitutional goal of substantive equality. It recognised the crucial point that constitutional goals are to be advanced by all three wings of the State and that in different contexts, the primary responsibility for that lies upon different wings. In the specific case of reservations, that responsibility has been placed upon the legislature. For this reason, in the domain of reservations, the Court would only assess the State’s subjective satisfaction on the deferential threshold of rationality and non-arbitrariness. This principle of deference will not apply to every situation where a law is challenged, and the State invokes data collection and analysis to justify itself.  It might be argued that the Court ought to have been more interventionist because the case did indeed involve a violation of rights – Article 16(1) equality rights of non-SC/ST candidates. This point was addressed by the Court by saying that, ‘there is substantial evidence that the members of the Constituent Assembly recognised that (i) Indian society suffered from deep structural inequalities; and (ii) the Constitution would serve as a transformative document to overcome them. One method of overcoming these inequalities is reservations for the SCs and STs in the legislatures and state services.’

According to N. Nagaraj, the government was also required to collect data on whether reservations in promotion would affect ‘efficiency’ in services (as per the requirement of Article 335). And one of the bases on which the petitioners attacked the Ratna Prabha Committee Report was precisely that it had failed to do so. As far as the concept of efficiency is concerned the Supreme Court said that the Constitution does not define what the framers meant by the phrase efficiency of administration. Article 335 cannot be construed on the basis of a stereotypical assumption that roster-point promotees drawn from the SCs and STs are not efficient or that efficiency is reduced by appointing them. This is stereotypical because it masks deep-rooted social prejudice. The benchmark for the efficiency of administration is not some disembodied, abstract ideal measured by the performance of a qualified open category candidate.

The efficiency of administration in the affairs of the Union or of a State must be defined in an inclusive sense, where diverse segments of society find representation as a true aspiration of governance by and for the people. If, as we hold, the Constitution mandates realisation of substantive equality in the engagement of the fundamental rights with the directive principles, inclusion together with the recognition of the plurality and diversity of the nation constitutes a valid constitutional basis for defining efficiency. Our benchmarks will define our outcomes. If this benchmark of efficiency is grounded in exclusion, it will produce a pattern of governance which is skewed against the marginalised. If this benchmark of efficiency is grounded in equal access, our outcomes will reflect the commitment of the Constitution to produce just social order. Otherwise, our past will haunt the inability of our society to move away from being deeply unequal to one which is founded on liberty and fraternity. Hence, while interpreting Article 335, it is necessary to liberate the concept of efficiency from a one-sided approach which ignores the need for and the positive effects of the inclusion of diverse segments of society on the efficiency of administration of the Union or of a State.

‘Efficiency’ that sees it in purely instrumental terms, and devoid of any relationship with the socio-economic context within which such accounts are inevitably embedded. It is an account that is based in a deeper idea of philosophical individualism, where there exist certain mechanisms – such as standardised tests – that measure ‘individual merit’, independent of an individual’s group affiliation. The Court has said that what a meritorious candidate is not merely one who is talented or successful but also one whose appointment fulfils the constitutional goals of uplifting members of the SCs and STs and ensuring a diverse and representative administration.  On the issue of creamy layer, it was argued that the law was unconstitutional because it was bound to take into account the exclusion of the creamy layer among SC/STs. The Court observed that the question of creamy layer did not arise at the point of promotions and consequential seniority. It is worth pointing out that the doctrine of the creamy layer doctrine is not supposed to apply to SCs/STs is because – historically – they have been oppressed by virtue of their group identity.  Thus, the court validated the Reservation Act 2018, which has cured the deficiency which was noticed by B. K. Pavitra – I in respect of the Reservation Act 2002.