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Context

The Supreme Court refused to lay down the “yardstick” for determining the inadequacy of representation for granting reservation in promotions for Scheduled Caste and Scheduled Tribe candidates in government jobs.

The court’s judgement came in a batch of petitions from across the country seeking further clarity on the modalities for granting reservation in promotion.

Current Scenario of Reservations in Promotions for SC/ST

The 2006 verdict on Nagaraj vs Union of India brought in a creamy layer filter for promotions for SC/ST employees.
Also, the judgement ruled that the state had to collect ‘quantifiable data on backwardness’ of the SC/ST class if it wished to provide reservation in promotions.
The judgement finally held that when it comes to promotion of SC/ST employees, the creamy layer concept does apply.
So now, only in direct recruitment of the SC/STs, the creamy layer concept does not apply.

What does the Supreme Court rule?

Cadre for Collecting Data

It held ‘cadre’ and not class, group or the entire service as the unit for the purpose of collection of quantifiable data for giving promotion quotas.
It said otherwise the entire exercise of reservation in promotions would be rendered meaningless if data pertaining to the representation of SCs and STs was done with reference to the entire service.

No Yardstick

The question of adequate representation of an SC/ST community ought to be left to the respective States to determine and it cannot lay down any yardstick for determining the inadequacy of representation.

Set Aside the Judgement in B.K. Pavithra Case (2019)

With the recognition of ‘cadre’ as the unit for collection of quantifiable data, the court set aside its earlier judgement in the B.K. Pavithra case.
SC held that the conclusion of this court approving the collection of data on the basis of groups and not cadres is contrary to the law laid down by the SC in Nagaraj and Jarnail Singh judgments.
The court held that the Nagaraj judgement would have “prospective effect.”

Review Ordered

The SC ordered that a review had to be conducted regarding the data for the purpose of determining the inadequacy of representation in promotions.
However, the court left it to the Union government to fix a “reasonable” time for the States to conduct the review.

What does the Constitution say on reservations?

Article 14 of the Constitution guarantees equality before the law and equal protection of laws to everyone.
Similarly, Article 16(1) and 16(2) assure citizens equality of opportunity in employment or appointment to any government office.
Article 15(1) generally prohibits any discrimination against any citizen on the grounds of religion, caste, sex or place of birth.
However, Articles 15(4) and 16(4) state that these equality provisions do not prevent the government from making special provisions in matters of admission to educational institutions or jobs in favor of backward classes, particularly the Scheduled Castes (SCs) and the Scheduled Tribes (STs).
Article 16(4A) allows reservations to SCs and STs in promotions, as long as the government believes that they are not adequately represented in government services.

What do the precedents say?

(1) Reservation in Promotions

The Central and the State Government since the 1950s have been following a policy of reserving seats in promotions in favours of SC and ST communities on the ground that they are not adequately represented at the decision making level of public services.

(2) Mandal judgment/ Indra Sawhney case 1992

The Supreme Court’s Indra Sawhney vs Union of India(1992) has been hailed as a landmark judgment as it upheld reservations for Other Backward Classes (OBCs).
However, this judgment also held that reservations in appointments, under Article 16(4) of the constitution, don’t apply to promotions.
The Supreme Court upheld the Mandal Commission’s 27% quota for backward classes, as well as the principle that the combined SC, ST and backward-class beneficiaries should not exceed 50% of cap.
The court also struck down the government notification reserving 10% government jobs for economically backward classes among the higher castes in 1992.
It held that, backward classes of the citizens of in Article 16(4) can be identified on the basis of caste and not only on the economic basis.
Reservation shall not exceed 50%. The court said that this rule should be applied every year. However, it may be relaxed in favour of people from far-flung and remote areas because of their peculiar conditions.
Carry forward rule is valid but it is subject to 50%. There should be NO reservation in the Promotions.

(3) 77th and 85th Constitutional Amendment Acts

The Constitution (77th Amendment) Act, 1995
- According to this Act, the Government has decided to continue the existing policy of reservation in promotion for the Scheduled Castes and Scheduled Tribes.
- It inserted Article 16(4A) which allows the State to provide reservations to SCs/STs in matters of promotion, as long as the State believes that this category of the marginalized populations –the SCs and STs – aren’t adequately represented.
The Constitution (85th Amendment) Act, 2001 provided for consequential seniority in the case of promotion by the virtue of rule of reservation for the government servants belonging to the SCs and STs with retrospective effect from June 1995.

(4) Nagraj Case

In this case applying the creamy layer concept in SC/ST reservation in promotions, the SC reversed its earlier stance in the Indra Sawhney case (1992), in which it had excluded the creamy layer concept on SCs/STs (that was applicable on OBCs).
The SC had upheld the Constitutional amendments by which Articles 16 (4A) and 16 (4B) were inserted, saying they flow from Article 16 (4) and do not alter its structure.
It also laid down three conditions for promotion of SCs and STs in public employment.
- The SC and ST community should be socially and educationally backward.
- The SC and ST communities are not adequately represented in Public employment.
- Such a reservation policy shall not affect the overall efficiency in the administration.
The court held that the government cannot introduce a quota in promotion for its SC/ST employees unless it proves that the particular community was backward, inadequately represented and providing reservation in promotion would not affect the overall efficiency of public administration.
The opinion of the government should be based on quantifiable data.

(5) Jarnail Singh Case 2018

Later in 2018, in the Jarnail Singh case, SC modified the Nagaraj judgement to the extent that State need not produce quantifiable data to prove the “backwardness” of a Scheduled Caste/Scheduled Tribe community in order to provide quota in promotion in public employment.
The court had given a huge fillip to the government’s efforts to provide “accelerated promotion with consequential seniority” for Scheduled Castes/ Scheduled Tribes (SC/ST) members in government services.

(6) Karnataka’s Extension of Consequential Seniority to Government servants Promoted on the Basis of Reservation act 2017

It was passed by the Karnataka Government to protect thousands of SC/ST employees who faced demotion in view of the 2017 judgment.
It allows the reservation in promotion for Scheduled Castes and Scheduled Tribes with consequential seniority(Consequential seniority is seniority given to employees from Scheduled Caste and Scheduled Tribe communities in government jobs as a consequence of reservation. It provides reservation in the first promotion as well as subsequent ones. This is not the case for general category employees).
It gives the state government to make rules to carry out the purpose of this act.
The repeals the Karnataka Determination of Seniority of the Government Servants Promoted on the basis of Reservation (to the posts in the civil services of the State) Act, 2002

Arguments against Quota in Promotions

Not a Fundamental Right: The Supreme Court reiterated in a judgment that reservation in promotion in public posts cannot be claimed as a fundamental right.
Impact on Efficiency: Promotions to SCs and STs during appointments to services and promotions may make it difficult to maintain the efficiency of administration.
Redundancy of Reservation: The SCs and STs are getting the benefits of reservation in the appointments to various servicers. Therefore, it is undesirable and inefficient to provide quota in promotions for key posts.
Not a Compulsion for Government: The Constitution empowers the State to make reservation in matters of appointment and promotion in favour of the Scheduled Castes and Scheduled Tribes only “if in the opinion of the State they are not adequately represented in the services of the State”.

Need for Quota in Promotions

Representation in Higher Echelons: The main reason for giving promotions in promotions is that there are very few SC/ST candidates in the higher echelons of government.
Proper Access to Opportunity: Centuries of discrimination and prejudice suffered by the SCs and STs in a feudal, caste-oriented societal structure poses real barriers of access to opportunity.
Constitutional Mandate: Constitution mandates realisation of substantive equality in the engagement of the fundamental rights with the directive principles
Special Measures Needed: Unless special measures are adopted for the SCs and STs in promotions also, the mandate of the Constitution for the consideration of their claim to appointment will remain illusory.
False Notion of Efficiency: The Constitution does not define what the framers meant by the phrase efficiency of administration. It is a stereotypical assumption that the promotees drawn from the SCs and STs are not efficient or that efficiency is reduced by appointing them.

Why does reservation matter for equality?

Reservation is no more seen by the Supreme Court as an exception to the equality rule; rather, it is a facet of equality.
The terms “proportionate equality” and “substantive equality” have been used to show that the equality norm acquires completion only when the marginalized are given a legal leg-up.

Substantive Equality under question

Formal equality is about treating all people alike and distributing resources equally among them.
However, someone at a disadvantage needs support to a greater extent than someone who is comfortably placed. Substantive equality recognizes this qualitative difference.
Unlike formal equality, it classifies the prospective beneficiaries on the basis of their need and the likely scope of benefit to them.
It takes into account people’s location along an axis of advantages and disadvantages. If substantive equality is part of our right to equality, it is untenable to insist that reservation is not a right.
While a limited interpretation of fundamental rights may be technically correct, it will not make for sound policy.

Way forward

Meanwhile, calls for reform and rethinking reservation policies get louder; one question is whether there’s a need to continue with reservation and if benefits have reached targets.
The challenge for India is that while many sections of the society remain disadvantaged, political action has resulted in the relative discrimination within reserved groups.
As the reservation pie grows larger, in effect, it becomes a method of exclusion rather than inclusion.
It is time that India has to make a critical assessment of its affirmative action programs.
Simplification, legislative sunsets, and periodic reviews should be important principles in the redesign.