Bringing clarity

Before he retired on May 11, Chief Justice of India K.G. Balakrishnan authored two unanimous judgments of the Supreme Court Constitution Bench on certain issues pertaining to reservation that had defied answers for several years.

In the first case, Union of India vs Ramesh Ram, the question was whether candidates belonging to the reserved category who get recommended against general/unreserved vacancies on account of their merit (without the benefit of any relaxation/concession) can opt for a higher choice of service earmarked for the reserved category. The Central government and the Union Public Service Commission (UPSC), which conducts the Civil Services Examination (CSE), contended that they could do so under Rule 16(2) of the CSE.

This rule states: While making service allocation, the candidates belonging to the Scheduled Castes [S.Cs], the Scheduled Tribes [S.Ts] or Other Backward Classes [OBCs], recommended against unreserved vacancies may be adjusted against reserved vacancies by the Government, if by this process they get a service of higher choice in the order of their preference.

In the 2005 CSE, for example, there were 26 meritorious OBC candidates and one meritorious S.C. candidate recommended against unreserved vacancies. If they had been considered for service allocation only against unreserved vacancies in competition with the General Category candidates, they would have got a service of lower choice, because they figured in the bottom of the General List. Rule 16(2) was a source of disappointment to OBC candidates in the wait list who could not be selected because the migration of successful OBC candidates from the General List to the Reserved List ruined their chances.

Some of the aggrieved OBC candidates challenged the validity of Rule 16(2) before the Central Administrative Tribunal (CAT), Chennai Bench. They contended that reserved category candidates who made it to the Merit List should be adjusted against the general (unreserved) vacancies as that would allow more posts for OBC candidates and a better choice of service for lower-ranked OBC candidates. They contended that more meritorious OBC candidates should be satisfied with a lower choice of service as they became general candidates by reason of their better performance. The CAT upheld their contention.

The Central government and candidates aggrieved by the CAT order appealed against it before the Madras High Court, which held Rule 16(2) as unconstitutional. The Supreme Court, which heard an appeal against the High Court order, referred the matter to its Constitution Bench. According to the government, the rule helps to preserve and protect inter se merit among the reserved category candidates. When a meritorious reserved candidate (MRC) secures a post in the reserved category, that candidate is to be treated as a reserved candidate, consistent with his option regarding his status, exercised in his application. Since 2005, the number of MRCs who wished to retain their reserved status has been on the rise.

The Constitution Bench, which comprised Chief Justice Balakrishnan, the current Chief Justice S.H. Kapadia, Justice R.V. Raveendran, Justice B. Sudershan Reddy and Justice R. Sathasivam, upheld the validity of Rule 16(2). The Bench pointed out that an MRC is at liberty to choose between the general quota and the respective reserved quota.

The Bench illustrated this with some factual examples. In 2005, an MRC (OBC) attained the 21st rank. With respect to his position in the general merit list, general category vacancies in the Indian Administrative Service (IAS) were available, and he occupied the 17th position out of the 45 general vacancies in the IAS. Thus, he did not need the assistance of Rule 16(2) to get a post in a more preferred service since he was adjusted against the general list. Therefore, he opted out of the reserved category. This was in line with the proposition that when a candidate is entitled to a certain post on his merit alone, he should not be counted against the reserved quota.

In contrast, another MRC candidate obtained 64th rank. At his position in the general list, he was entitled to a post in the Indian Police Service (IPS) since the general category IAS vacancies had been exhausted by candidates above him in the general merit list. However, the IPS was his second preference; IAS was his first choice. If he were to be considered against the vacancies in the reserved category, he would be entitled to a post in the IAS because the 22 IAS vacancies for OBC candidates had not been filled at that point of time. By the operation of Rule 16(2), he was able to join the IAS by migrating to the reserved (OBC) category.

The Bench explained that the MRCs, having indicated their status as S.C./S.T./OBC at the time of filling in the application, participate in the examination process as reserved candidates. After qualifying as per the general standard, they have the option of opting out of the reserved category. If, however, they are able to secure a better post in the reserved list, their placement in the general list should not deprive them of the same. Rule 16(2) thus protects the reserved status of the MRCs.

The Bench agreed with the Central government that the rule corrects an anomalous situation where a lower-ranked OBC candidate gets allotted a better service in comparison to a higher-ranked OBC candidate simply because he/she performed well enough to qualify in the general category.

The Bench reasoned that if the MRCs are adjusted against the reserved category vacancies with respect to their higher preferences of cadre and posts and the seats vacated by them in the general category are further allotted to other reserved category candidates, the aggregate reservation could possibly exceed 50 per cent of all the available posts, which would be against the Supreme Court's ruling in Indra Sawhney vs Union of India (1992).

Therefore, the Bench held that the seats vacated by the MRCs in the general pool would be offered to general category candidates. If, however, an MRC chooses not to avail himself of the benefits of his status as a reserved candidate, then he will be counted in the general category and the seat vacated by him in the reserved category will automatically go to a candidate who belongs to the same reserved category.

The Bench explained that a reserved candidate, by doing well enough in the examination to qualify in the open category, did not automatically rescind his/her right to a post in the reserved category. Rule 16(2), in essence and spirit, protected the pledge in the Preamble of the Constitution, which conceives of equality of status and opportunity, the Bench said.

The Bench reasoned that affirmative action measures should be scrutinised as per the standard of proportionality. The criteria for any form of differential treatment should bear a rational correlation with a legitimate governmental objective. In this case, a valid distinction has been made between MRC and relatively lower-ranked reserved category candidates.

Local self-government

In the second case, Dr K. Krishna Murthy vs Union of India, the constitutional validity of some aspects of the reservation policy prescribed for local self-government institutions was challenged. The petitioners challenged Articles 243-D (4) and 243-T (4), which provide for the reservation of chairperson posts, as well as Articles 243-D(6) and 243-T(6), which enable reservation for backward classes in panchayats and municipalities.

The petitioners argued that these provisions, which were inserted into the Constitution by way of the 73rd and 74th Amendments, were violative of the fundamental principles such as equality, democracy and fraternity, and, therefore, not amendable.

Counsel for one of the petitioners, Rama Jois, contended that the OBCs did not need reservation benefits because empirical findings suggested that there was already a high degree of political mobilisation among them.

In its judgment, the Bench comprising Chief Justice K.G. Balakrishnan and Justices R.V. Raveendran, D.K. Jain, P. Sathasivam and J.M. Panchal explained that the objectives of democratic decentralisation were not only to bring governance closer to the people but also to make it more participatory, inclusive and accountable to the weaker sections of society. In this sense, reservation in local self-government is intended to benefit directly the community as a whole rather than just the elected representatives. It is for this very reason that there cannot be an exclusion of the creamy layer in the context of political representation.

With respect to the chairperson positions in the elected local bodies, it was argued that they were in the nature of single posts and reserving them amounted to cent-per cent reservation, thereby offending the equality clause. The Bench, however, rejected this contention, saying the frame of reference was the entire pool of chairperson positions computed across each tier of panchayati raj institutions in the State.

The petitioners pleaded that those who occupied the reserved chairperson posts were more likely to cater to the narrow interests of their own groups rather than work for the welfare of the entire community. The Bench rejected this argument by holding that reservation of chairperson posts was intended to enable the weaker sections to assert their voice against entrenched interests at the local level. The patterns of disadvantage and discrimination faced by persons belonging to the weaker sections are more pervasive at the local level.

The petitioners also argued that excessive reservation placed unfair limitations on the rights of political participation of persons belonging to the unreserved categories. The reservation of seats and chairperson posts curtailed the right to vote, the right to sponsor candidates of one's choice and the right to contest elections, among other things. They contended that such restrictions were in conflict with the principle of universal adult franchise provided under Article 326, which also entailed that as far as possible, there should be parity in the weightage given to the votes cast by each individual.

In this sense, reservation tended to distort the electoral process by giving more weightage to the voters and candidates from the beneficiary groups as opposed to those from the general category, the petition said.

The Bench disagreed with this contention by enunciating that the rights to vote and contest elections were not fundamental rights; they were legal rights that could be controlled through legislative means. Right to vote is not an inherent right and it cannot be claimed in an abstract sense, otherwise, there would be no need for voters' lists to identify eligible voters.

Empowerment

Responding to the argument that the real power is exercised by the male members of the families, the Bench referred to the frequent reports of instances where women representatives had asserted themselves, and to increasing reports about success stories of women's participation in local self-government.

At the level of panchayats, the empowerment of the elected individual is only a means for pursuing the larger end of advancing the interests of the weaker sections. Hence, it would be counter-intuitive to exclude the relatively better-off persons among the intended beneficiaries from the reservation benefits that are designed to ensure diversity in the composition of local bodies. Such persons may be better equipped to represent and protect the interests of their respective communities, the Bench said.

It agreed that excessive and disproportionate reservation provided by State legislation could be the subject matter of specific challenges before the courts. However, it held that the identification of backward classes for the purpose of reservation was an executive function and as per the mandate of Article 340, dedicated commissions needed to be appointed to conduct rigorous empirical inquiry into the nature and implications of backwardness. It was also incumbent upon the executive to ensure that reservation policies were reviewed from time to time so as to guard against overbreadth, it said.

The Bench opined that social and economic backwardness did not necessarily coincide with political backwardness. Therefore, not all the groups that enjoyed reservation benefits in the domain of education and employment needed reservation in local self-government. The barriers to political participation were not of the same character as barriers that limited access to education and employment, it reasoned.

The Bench stressed that the upper ceiling of 50 per cent with respect to vertical reservation in favour of S.C./S.T./OBCs should not be breached. However, it found the petitioners' arguments misconceived as they confused vertical reservation with the horizontal reservation in favour of women to assert that the 50 per cent ceiling had been breached in some of the States. Since one-third of the seats reserved for S.Cs/S.Ts/OBCs were to be reserved for women belonging to the same categories, the seats earmarked for women belonging to the general category should not be accounted for if one were to gauge whether the upper ceiling of 50 per cent had been breached, the Bench explained.

However, the Bench warned that the quantum of reservation in favour of backward classes in local bodies in general areas (where there are no exceptional considerations), could not exceed the upper limit of 50 per cent; therefore, some of the States may have to modify their legislation so as to reduce the quantum of the existing quotas in favour of the OBCs. Exceptions could be made in order to safeguard the interests of the S.Ts in the matter of their representation in the panchayats located in scheduled areas, it held.