Row over S.C. verdict on reservation in promotions

Print edition : March 13, 2020
The recent Supreme Court verdict on reservation for S.Cs and S.Ts in government jobs will have far-reaching consequences.

IN a judgment that is likely to have far-reaching consequences and has already generated a fair amount of political controversy, a two-judge Supreme Court bench consisting of Justices L. Nageswara Rao and Hemant Gupta ruled on February 7 that no individual could claim reservation in promotions and that the court could not issue a mandamus directing State governments to provide reservation.

The bench relied on past judgments of the court, which held that Articles 16(4) and 16(4-A) of the Constitution did not confer the fundamental right to claim reservation in promotion. Article 16(4) does not prevent States from “making provisions for reservation in appointments or posts in favour of any backward class of citizens” and 16(4-A) was inserted to allow States to make provisions for reservation in promotions for the Scheduled Castes and the Scheduled Tribes (S.C./S.T.), which, in the opinion of the State, were not adequately represented in services under the State.

They were enabling provisions vesting a discretion on State governments, the bench held, quoting from previous judgments in Ajit Singh vs State of Punjab and C.A. Rajendran vs Union of India.

The bench ruled that it was not mandatory for States to provide reservation and if the States wanted to provide reservation in promotions it could do so only on the basis of quantifiable data showing inadequate representation of people from these classes in public services. If such a decision was challenged, requisite and quantifiable data should be provided to the court justifying the necessity of reservation in a particular class or class of posts without affecting the general efficiency of the administration as mandated under Article 335 of the Constitution.

The apex court was disposing of appeals filed over the years challenging the Uttarakhand government’s decision in September 2012 not to provide reservation to S.Cs/S.Ts. The decision was challenged in the Uttarakhand High Court. The court struck down the decision as it ran contrary to the apex court judgment in Indra Sawhney v Union of India & Ors (1992). The High Court referred to two other apex court rulings while striking down the government’s decision. It also observed that it was not necessary for the State government to collect quantifiable data regarding representation of S.Cs and S.Ts in State services regarding their backwardness before providing reservation for them in promotion posts/vacancies.

The apex court was dealing with two sets of civil appeals challenging two decisions of the Uttarakhand High Court, one that struck down the State government’s 2012 order and the other that directed the State government to implement reservation in promotion by promoting only members of the S.C./S.T. community in future vacancies to maintain the quota earmarked in these categories. The government went in for a review of the High Court’s April 1, 2019, judgment. The court, on its part, rectified its order stating that while the State government had an obligation to collect quantifiable data regarding the inadequate representation of the two social categories in State services in reservation in promotions, it was not necessary for it to collect data regarding backwardness. It also held that the State was not obliged to provide reservation in promotions as Article 16(4-A) was only an enabling provision. So the State government will provide reservation only after it ascertains the adequacy or inadequacy of representation.

Counsel for the State of Uttarakhand and appellants (all special leave petitions were filed in 2019-20) who had challenged the High Court decision setting aside the 2012 order stuck to their position that there was no fundamental right to claim reservation in appointments or promotions to public posts. It is significant to mention here that after the formation of the State of Uttaranchal (later Uttarakhand) in 2001, the Uttar Pradesh Public Services (S.C., S.T. and Other Backward Caste Reservation), Act, 1994, was made applicable to Uttaranchal by a government notification of August 30, 2001, which modified the percentage of reservation. Reservation was reduced from 21 per cent to 19 per cent for S.Cs, and increased from 2 per cent to 4 per cent for S.Ts. Similarly, reservation for Other Backward Classes (OBCs) was reduced from 21 per cent to 14 per cent. Counsel appearing for the Uttarakhand government and the appellants maintained that the government was not bound to provide reservation and that Articles 16(4) and 16(4-A) were enabling provisions.

The State of Uttarakhand’s decision in 2012 was taken following a judgment of the State High Court in the Vinod Prakash Nautiya case that declared the 1994 Act unconstitutional. It was argued by senior counsel, while appealing against the April 2019 High Court order, that there was no need to collect quantifiable data after the government had taken a decision not to provide reservation. The need to collect data would arise only to justify a decision to provide reservation, it was argued. It was pointed out that the earlier apex court judgments had laid down that no direction could be given by the court to the State government to collect such data on the basis of which a decision to provide reservation should be taken (Suresh Chand Gautam vs State of U.P.) and that the State was not bound to provide reservation (M. Nagaraj & Ors). Counsel representing the reserved category of employees argued that the State could not refuse to collect such data and that it had an obligation to provide reservation in promotions for the upliftment of the members of the S.C./S.T. community as mandated by Articles 16(4) and 16(4-A). The right to equality of such categories of persons could not be defeated by the State government by not discharging its constitutional obligations under the two Articles.

It was also pointed out that the State government had constituted a committee to collect quantifiable data regarding the adequacy of representation of S.C. and S.T. persons in public posts in accordance and compliance with the judgment of the apex court in the Nagaraj & Ors case. They also said that the State was bound not to provide reservation only after it was satisfied that S.Cs/ S.Ts were adequately represented in such posts on the basis of quantifiable data. The committee set up by the government found that there was “inadequate representation of the S.Cs and S.Ts in government services”. This report was approved by the State Cabinet.

Therefore, the State was duty-bound, it was argued, to provide reservation on the basis of data collected by the committee.

The Supreme Court bench held: “The language in Clauses (4) and (4-A) of Article 16 are clear, according to which, the inadequacy of representation, is a matter within the subjective satisfaction of the State.” The judges also said that “all that is required is that there must be some material on the basis of which the opinion is formed”, wherein due deference would be shown to the opinion of the State “which, however did not mean that the opinion formed is beyond judicial scrutiny”.

In the present case, there was material that showed the inadequacy of representation of persons from S.C. and S.T. communities and the report on the basis of which this opinion was formed was passed by the State Cabinet. The bench upheld the Uttarakhand government’s 2012 decision to fill all public posts in public services without providing reservation for the S.Cs and the S.Ts or reservation in promotions.

Ambedkar on Article 46

Referring to two cases that had been referred to the Supreme Court by the Madras High Court concerning reservation for B.Cs in public services and educational institutions, B.R. Ambedkar, while speaking on the Constitution (First Amendment) Bill, said that he found the Supreme Court’s view that Article 16 (4) was discriminatory on grounds of caste and, therefore, was decreed as invalid as “utterly unsatisfactory”. He said that it would be “really impossible to make any reservation which would not result in excluding somebody who has a caste”.

In Article 46 of the Directive Principles, he said, “An obligation has been laid upon the government to do everything possible to promote the welfare and interest of what are called the weaker sections of the public by which I mean to understand the backward classes or such other classes who are for the moment not able to stand on their legs—the Scheduled Castes and the Scheduled Tribes. It is, therefore, incumbent not merely on this government but on this Parliament to do everything in its hands to see that Article 46 is fulfilled and if that fulfilment is to come, how one can escape an amendment so as to prevent Article 29, Clause 2 and Article 16, Clause 4 being interpreted the way it has been interpreted and being made to block the advancement of the people who are spoken of as the weaker class. That is the necessity of amending Article 15” (Excerpted from Dr Babasaheb Ambedkar’s Writings and Speeches, Volume 15, Ed. by Vasant Moon, January 26, 1997; published by the Education Department, Maharashtra government). Ambedkar pressed for the amendment of Article 15 so as to have an encompassing protective provision that barred discrimination of any kind, of any person in any place. That is how Article 15 (2) came into existence.

Article 29 (2) referred to by Ambedkar stated that no citizen shall be denied admission into any educational institution maintained by the state or receiving aid out of state funds only on grounds of race, caste, religion, language.

Political Science Professor Narender Kumar of Jawaharlal Nehru University feels that the Supreme Court judgments ran contrary to the first constitutional amendment. Data alone could not explain the biases in society against the S.C. and the S.T. communities, he said, giving his own example. He said he was denied a promotion in a college in the University of Delhi despite having a doctorate, teaching experience and academic publications. The Delhi University Teachers’ Association took up his case after he made a representation to it. “I finally got my promotion after one year but had there been reservation in promotions, they would not have been able to stop my appointment,” he said.

It was only in 1996 that the Executive Council of Delhi University made a provision adopting reservation in teaching posts.

The Congress and Union Minister Ram Vilas Paswan of the Lok Jan Shakti Party have objected to the apex court order. The Bhim Army, a front representing the B.Cs, with a reasonable base in Uttar Pradesh, took out a protest on February 16. It has now given a call for a Bharat bandh.