With reservations

A provocative book on the contemporary debate on whether Parliament can overrule the judiciary in the matter of reservation.

RAJEEV Dhavan, legal academic, columnist, and a senior advocate in the Supreme Court, has been on both sides of the debate on reservation. In 1992, he argued in the Mandal I case (Indra Sawhney vs Union of India) on behalf of the Other Backward Classes (OBCs). He represented Ezhavas, a community in Kerala which, according to him, does not suffer from caste disadvantage but claims to suffer from continuing discrimination.

In 2007, in the Mandal II case (Ashoka Kumar Thakur vs Union of India), he argued on behalf of the All India Equality Forum, one of the petitioners who challenged the Central governments move to introduce reservation for Scheduled Castes, Scheduled Tribes and OBCs in admission to educational institutions, aided and unaided.

What happened between 1992 and 2007 to warrant this change in brief? In Reserved: How Parliament Debated Reservations, Dhavan attributes this to the three Punjab cases in the Supreme Court between 1995 and 1999. According to him, the cases, R.K. Sabharwal vs State of Punjab, Ajit Singh vs State of Punjab and Ajit Singh II vs State of Punjab, had a big impact. After the judgment was delivered in each of these cases, Parliament introduced amendments to the Constitution to nullify the effects of the judgments that were perceived to be against the interests of the S.Cs and the S.Ts.

Dhavan was not convinced with Parliaments objective in changing the basis of the verdicts in the Punjab cases. In M. Nagaraj vs Union of India, he argued for the petitioners who challenged the validity of these amendments. Over the years, he claims, he found that the S.Cs and the S.Ts were, willy nilly, holding a disproportionate number of posts in technical civil services. (He does not share any data with the readers.) The Punjab cases, according to him, disciplined this excess. However, Dhavan adds that he was not sure if he was wrong in recommending to the court to prune and straightjacket the quota system so that it became more reasonable. One wonders whether the author is convinced at all about the merits of his arguments against what he calls the S.Cs and the S.Ts questionable quest for a real monopoly of the civil services.

In Mandal I, Dhavan advanced the empowerment argument, which touched a chord in the majority judgment of Justice Jeevan Reddy. In his judgment, Justice Reddy not only accepted his argument but took the view that this sentiment was echoed in the discussions of the Constituent Assembly itself. Dhavan identifies disempowerment as one of the three considerations to determine backwardness of a class, the others being disadvantage and discrimination. He explains that there was a cutting edge to the argument of disempowerment: empowerment included both political and bureaucratic empowerment. The empowerment argument did not appeal in Mandal II because the case pertained to reservation in educational institutions. One is left wondering why Dhavan does not believe that many disempowered classes see admission to educational institutions as a passport to gain entry into the civil services.

There is another inconsistency in Dhavans involvement with the quota debate. According to him, the formula of a creamy layer test should not become an incantation. The purpose, he says, is to divide the Backward Classes into the disadvantaged and the less or least disadvantaged. But he says the creamy layer was not devised to skim off the least disadvantaged in that group and deny them the benefit of reservation completely. He shares the Left parties perspective that the creamy layer should get the benefits of reservation only after the claims of the backward and more backward members of that class have been exhausted.

However, in the M. Nagaraj and Mandal II cases, Dhavan argued in favour of excluding the creamy layer among the S.Cs and the S.Ts. It is difficult to appreciate how Dhavan, a proponent of a less stringent test for identifying the creamy layer among the OBCs, because it would reduce the number of beneficiaries disproportionately, could turn around and argue against non-exclusion of the creamy layer among the S.Cs and the S.Ts.

One is not sure if Dhavan is missing the essential distinction between the rationale for reservation for the OBCs and for the S.Cs and the S.Ts. He acknowledges that the S.Cs and the S.Ts constitute a super classification in the Indian Constitution and that they suffer social discrimination and disadvantage. He agrees that as a group they cannot be derecognised except by a constitutional process.

Yet, he advances the view that the creamy layer test is an individual test and excludes those who are success stories. He says that it is an equality test among the S.Cs and the S.Ts to ensure that the worst off among them are not obscured by the better off.

In the Mandal II case, the Supreme Court rightly distanced itself from the question of applying the creamy layer test to the S.Cs and the S.Ts, because the Constitution Bench claimed the issue was not before it. But Dhavans conclusion is exactly the opposite: in Mandal II , the majority Judges (Justices Arijit Pasayat, C.K. Thakker, Raveendran and Dalveer Bandari) held that since the creamy layer test went to the root of the concept of equality it applied across the board to all backward classes, including the S.Cs and S.Ts and the OBCs.

All the Judges, except Chief Justice K.G. Balakrishnan, according to Dhavan, must be taken to have implicitly, if not explicitly, accepted the application of the creamy layer test to the S.Cs and the S.Ts. This is indeed a debatable proposition.

Dhavan considers in depth the debates in Parliament before the enactment of the five constitutional amendments dealing with reservation. The first was the 77th Amendment in 1995 inserting Article 16(4A) to provide for reservation in promotions for the S.Cs and the S.Ts. The Indra Sawhney judgment of 1992 scheduled a five-year deadline for reservation in promotions to end. The second was the 81st Amendment in 2000 inserting Article 16(4B) enabling the government to carry forward unfilled reserved vacancies in public services to the following year, and keep them beyond the 50 per cent ceiling on reserved posts fixed by the Supreme Court in Mandal I.

The third was the 82nd Amendment in 2000, which added a proviso to Article 335 to enable relaxation in the qualifying marks for the S.Cs and the S.Ts, for reservation in promotion. This was necessitated by the Supreme Courts judgment in S.Vinod Kumar vs Union of India (1996), which held such relaxation impermissible.

The fourth was the amendment of Article 16(4A) by the 85th Amendment Act. By virtue of being appointed earlier to a reserved post, an employee belonging to the S.C. or S.T. categories acquires a consequential seniority over merit candidates in the promotional cadre.

In the Ajit Singh II case (1999), the Supreme Court, however, held that accelerated promotion did not imply accelerated seniority. The amendment, therefore, inserted the words, in matters of promotion with consequential seniority in the clause to provide that reservation is not ruled out in such cases.

The fifth is the 93rd Constitution Amendment, made in 2005, and the Central Educational Institutions (Reservation in Admission) Act, 2006. Parliament enacted these as an answer to the Supreme Courts judgment in the P.A. Inamdar case (2005), which held that reservation could not be imposed on private unaided institutions.

Dhavan believes that Parliament brazenly overruled the apex court judgments while enacting the constitutional amendments. Dhavan does not explain what distinguishes brazen overruling of a judgment from an amendment that just seeks to change the basis of a judgment. The latter is legally acceptable, while the former is not. Each one of these amendments has been subsequently validated by the Supreme Court: the first four in the M. Nagaraj case and the fifth one in Mandal II.

The Supreme Court observed in the M. Nagaraj case: Equity, justice and efficiency are variable factors. These factors are context-specific. There is no fixed yardstick to identify and measure these three factors; it will depend on the facts and circumstances of each case. These are the limitations on the mode of the exercise of power by the State. None of these limitations have been removed by the impugned amendments. If the concerned State fails to identify and measure backwardness, inadequacy and overall administrative efficiency then in that event the provision for reservation would be invalid. These amendments do not alter the structure of Articles 14, 15 and 16 (equity code). The parameters mentioned in Article 16(4) are retained.

It further observed that: It was vehemently urged on behalf of the petitioners that the Statement of Objects and Reasons indicate that the impugned amendments have been promulgated by Parliament to overrule the decision of this court. We do not find any merit in this argument... The impugned constitutional amendments are enabling in nature. They leave it to the States to provide for reservation.

The book refers to the judgment in the M. Nagaraj case in passing and does not refer to these passages, which tend to weaken Dhavans main thesis of brazen overruling of judgments. In Mandal II, Dhavans major plea that there was cursory debate in Parliament before enacting the impugned amendment failed to impress the court, which considered it an insufficient ground to set aside the amendment and the Act providing for reservation in educational institutions.

All said, Dhavan must be congratulated on writing a provocative and well-researched book on the contemporary debate on reservation.