Legal onslaught

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Congress workers protesting against RSS chief Mohan Bhagwat's statement calling for an end to reservation, in Raipur in November 2015. Photo: PTI

The future of protective discrimination in favour of Scheduled Castes and Scheduled Tribes is under doubt, with the Supreme Court encouraging legal challenges to it.

TWO recent cases before the Supreme Court have led to considerable doubt about the future of reservation for Scheduled Castes and Scheduled Tribes.

In Suresh Chand Gautam vs State of Uttar Pradesh, decided by the Supreme Court on March 11, the bench comprising Justices Dipak Misra and Prafulla C. Pant rejected the prayer of the petitioners to issue a direction to the Uttar Pradesh government to collect necessary qualitative data of Scheduled Caste (S.C.) and Scheduled Tribe (S.T.) members in the services of the State for granting reservation in promotion.

While rejecting this prayer, the bench held that the State was not bound to make reservation in promotion and that the State’s discretion to make reservation can only be exercised on certain conditions being satisfied. Further, the bench held that a mandamus to the State to carry out a survey to collect data for the purpose exercising discretion to make reservation in promotions for S.C. and S.T. members cannot, therefore, be given.

The need to collect data regarding reservation in promotions became imperative following the Supreme Court’s judgment in M. Nagaraj vs Union of India in 2006. In this case, the Supreme Court’s five-judge Constitution Bench upheld the validity of Articles 16 (4A) and 16 (4B), inserted through the 77th Amendment Act, 1995, and further amended by the 85th Amendment Act, 2001, and the 81st Amendment Act, 2000, respectively.

Article 16 (4A) enables reservation in promotions, with consequential seniority, to any class or classes of posts in favour of the S.Cs, and S.Ts, which are not adequately represented in the services. Article 16 (4B) deals with the filling up of reserved vacancies, which remain unfilled in previous years, over and above the 50 per cent ceiling on reserved posts in a year. The ceiling of 50 per cent on reservation was fixed by the Supreme Court in another case earlier, and affirmed by the court in M. Nagaraj.

While upholding these two provisions, the bench had held that the State would have to show in each case the existence of compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation.

The bench, in M. Nagaraj, further held that Article 16 (4A) is an enabling provision and therefore the State was not bound to make reservation for S.Cs/S.Ts in promotions. However, if the State wishes to exercise its discretion and make such provision, it has to collect quantifiable data showing the backwardness of the class and the inadequacy of representation of that class in public employment in addition to compliance with Article 335, the Nagaraj bench had held.

Article 335 says the claims of S.C. and S.T. members will be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.

It is in the context of the Supreme Court’s observations in M. Nagaraj that the petitioners Suresh Chand Gautam sought the court’s intervention to direct the State to collect such data to justify reservation in promotions.

The petitioners argued before the Supreme Court that the State, as a model employer, must be construed as having failed in its duty if it did not collect appropriate data to justify reservation in promotions. They argued that the concept of “power coupled with duty” would then come into play, and, therefore, the court would be justified in issuing directions to the State to collect the necessary data.

Failure to collect data, it was argued, would mean failure to perform a constitutional duty, and the non-performance of such duty would affect and eventually jeopardise the fundamental affirmative facets of the Constitution.

The bench in Suresh Chand Gautam, however, reasoned that Articles 16 (4A) and 16 (4B) being enabling provisions, there was no power coupled with duty. Therefore, the bench held that a direction to collect data would mean entering the domain of legislation or delegated legislation for reservation.

P.S. Krishnan, a former civil servant and an authority on affirmative action for deprived sections, described the judgment in Suresh Chand Gautam as erroneous. According to him, the government has a duty to bring about equality and advancement of S.Cs and S.Ts, and the Constitution gives all the powers to the State to take any measures for the purpose. Clearly, a duty is cast on the State, and amendment of the Constitution is the only way to address the anomalies that the judgments in M. Nagaraj and Suresh Chand Gautam have led to, he said. The Supreme Court failed to interpret Articles 16(4A) and 16 (4B) holistically, he explained.

One of the petitioners in Suresh Chand Gautam told the court that nine years had elapsed since Nagaraj’s case and no clear effort had been forthcoming from the State to collect data to justify reservation in promotions. This exercise had to be completed so that the state of employment in State services was not left in limbo, it was argued before the court.

The Supreme Court was told in a subsequent case that thousands of S.C./S.T. employees had been reverted to their former posts after their promotions were reversed in accordance with the Supreme Court’s judgment, making the collection of data mandatory to justify reservation.

Because of the judgment in Suresh Chand Gautam, the States and the Centre are likely to be further indifferent to their constitutional obligation to collect data to justify reservation.

Reservation in legislative bodies

The Supreme Court’s five-judge Constitution Bench has begun hearing a bunch of petitions pending since 2000 challenging the constitutional validity of extending reservation of seats in the Lok Sabha and the State Assemblies for S.Cs and S.Ts once every 10 years.

Article 334 of the Constitution, as it originally stood, provided that the reservation of seats for the S.Cs and S.Ts in the Lok Sabha and the Legislative Assemblies of the States would cease to have effect on the expiry of 10 years from the commencement of the Constitution. However, since 1960, this period has been extended every 10 years. The present extension in Article 334, which stood amended last in 2009, thus lasts upto 2020.

The hearing of the petitions under the title Ashok Kumar Jain and others vs Union of India and others is likely to be an acid test for the judiciary’s as well as the government’s commitment to the philosophy of protective discrimination in favour of disadvantaged groups. At stake are 120 seats in the Lok Sabha and 1,080 seats in the Legislative Assemblies of the States, which are reserved for S.Cs and S.Ts.

In its counter-affidavit filed in the case, the Central government has submitted that Article 15 (4) of the Constitution permits the State to make special provisions for advancement of any socially and educationally backward class of citizens or for S.Cs and S.Ts.

The government also relied on Article 46 of the Constitution, a directive principle of state policy, to submit that it is the obligation of the state to promote with special care the educational and economic interests of the weaker sections of the people and, in particular, of S.Cs and S.Ts. Therefore, the government argued that the once-in-10-years extension given to the reservation of seats in the Lok Sabha and State Legislative Assemblies was a compensatory measure to maintain their political equality in society.

The government also cited the Supreme Court’s judgment in the case of K.C. Vasant Kumar vs State of Karnataka (1985) in which the court had observed that in respect of S.Cs and S.Ts, thousands of years of discrimination cannot be wiped out in one generation.

The petitioners have argued that the repeated extensions to reservation of seats under Article 334 have been made in a mechanical manner, on the grounds that the conditions for its continuance still exist or that very little progress has been achieved by S.Cs and S.Ts. The absence of any official study to ascertain whether the reservation of seats has benefited the S.Cs and S.Ts, or whether there could be any alternative approach to achieve the same purpose, has been cited by the petitioners as proof of non-application of mind while extending reservation once every 10 years.

The hearing of this case and its outcome will have a profound impact on the nature of public discourse on the scope and ambit of protective discrimination in favour of historically disadvantaged groups like S.Cs and S.Ts.