A BLOW AGAINST SOCIAL JUSTICE

Why in news?

The recent verdict of a two-judge Supreme Court Bench on reservations and Scheduled Caste and Scheduled Tribes promotions — “that no individual could claim reservation in promotions and that the court could not issue a mandamus directing State governments to provide reservation”.

Details:

This judgement has mainly raised four constitutional questions:

• Whether reservation in promotions is a fundamental right or not.
• Whether a court can direct the state to provide reservations.
• Whether quantifiable data for inadequate representation is a must for giving reservation in promotions.    
• Whether it is the obligation of the state to give reservation.

In 2018 a five-judge Constitution bench had denied reservation for SCs and STs who belong to the creamy layer; the Central government has asked for a review by a seven-judge Constitutional bench.
This verdict on SCs and STs promotions has affected social justice and the advancement of the under-privileged.

Whether reservation in promotions is a fundamental right or not?

• The scope for reservation for the Backward Classes is promised in Part III of the Constitution under Fundamental Rights.
• Articles 16(4) and 16(4A) which empowers the state to provide reservation for SCs and STs are a part of the section, “Equality of opportunity in matters of public employment”.
• The right to equality is also enshrined in the Preamble of the Constitution.
• Many construe that the reservation is against Article 14 (Right to equality).
• But one should understand that the absence of equal opportunities for the Backward Classes due to historic injustice by virtue of birth entails them reservation.
• In other words, the right to equality is the basis of reservation as there is no level-playing field among castes.
• Articles 16 (2) and 16(4) are neither contradictory nor mutually exclusive in nature.
• In fact, they are complementary to each other; even Article 16(4) is not a special provision.

Whether reservation should be applied in promotions?

• The answer is yes, because in India, where there is a peculiar hierarchical arrangement of caste,
• It is conspicuous that SCs and STs are poorly represented in higher posts.
• Denying application of reservation in promotions has kept SCs and STs largely confined to lower cadre jobs.
• when there is no direct recruitment in higher posts, the implementation of reservation is justified at every level to get a reasonable representation.
• It is not correct to subdivide the scope of reservation at the entry level and in promotions

Can a court issue a mandamus to the state for providing reservation?

• This is inappropriate because when the court is empowered to pass orders to create extra seats every year for forward-caste students who claim to be affected by reservation, why cannot it direct the state to provide reservation in promotions?
• The Supreme Court has extraordinary powers under Article 142, which empowers the Court to pass any order necessary for doing “complete justice in any cause or matter pending before it”.

Whether quantifiable data for inadequate representation is a must for giving reservation in promotions?

• Article 16(4) reads: “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.”
• Here, “in the opinion of State” should not be construed as the discretion of the state to give the reservation or not; on the contrary, if the state feels that SCs and STs are under-represented, then it is in the domain of the state to provide reservation.
• In the Indra Sawhney vs Union of India case (Mandal Commission) the idea of quantifiable data on inadequate representation was applied for exceeding the 50% cap for reservation; within 50% where the existing quotas for SCs and STs are accommodated were not affected.
• The responsibility of collecting data on representation by the Backward Classes lies with the state. 
• Moreover, Article 16(4) clearly mentions that if the state, in its opinion, feels that SCs and STs are not adequately represented, then it can provide reservation for them. There is no mention of “quantifiable data” in the Constitution.
• Even after 70 years of SC/ST reservation, their representation is as low as 3%.

Whether it is the obligation of the state to give reservation?

• It must be noted that when reservation rights are in Part III as Fundamental Rights, it is the obligation of the state to ensure reservation to the underprivileged.
• This judgment has interpreted Articles 16 (4) and 16(4A) only as enabling provisions.
• Enabling provisions mean that these provisions empower the state to intervene; it does not mean the state is not bound to provide it.

Administrative efficiency (Article 335)

• More importantly, this judgment has raised a new point — that the decision of the State government to provide reservation for SC/STs should not affect the efficiency of administration.
• This implies that the entry of SC/STs in the job market can reduce the quality of administration; this by itself is discriminatory.
• There is no evidence that performance in administration is affected on account of caste.

Background:

Related Constitutional Provisions about Reservation

• Article 16(4) empowers the state to make any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the state, is not adequately represented in the services under the state.
• By way of the 77th Amendment Act, a new clause (4A) was added to Article 16, empowering the state to make provisions for reservation in matters of promotion to Scheduled Caste/Scheduled Tribe employees if the state feels they are not adequately represented in services.

Key Points from the SC judgement:

• Article 16 (4) and 16 (4A) of the Constitution are in the nature of enabling provisions, vesting a discretion on the state government to consider providing reservation, if the circumstances so warrant.
• The state government cannot be directed to provide reservation for appointment in public posts. Similarly, the state is not bound to make reservations for Scheduled Castes and Scheduled Tribes in matters of promotions.
• Articles 16 (4) and 16 (4-A) of the Constitution did not confer individuals with a fundamental right to claim reservations in promotion.
• The Articles empower the State to make reservations 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”.
• Thus, the State government has discretion “to consider providing reservations, if the circumstances so warrant”.
• However, if a State wishes to exercise its discretion and make reservation in promotions, it has to first collect quantifiable data showing inadequacy of representation of a class or community in public services.

Indra Sawhney vs Union of India and M Nagraj case:

In its landmark 1992 decision in Indra Sawhney vs Union of India, the Supreme Court had held that reservations under Article 16(4) could only be provided at the time of entry into government service but not in matters of promotion.

It added that the principle would operate only prospectively and not affect promotions already made and that reservation already provided in promotions shall continue in operation for a period of five years from the date of the judgment. It also ruled that the creamy layer can be and must be excluded.

1. On June 17, 1995, Parliament, acting in its constituent capacity, adopted the seventy-seventh amendment by which clause (4A) was inserted into Article 16 to enable reservation to be made in promotion for SCs and STs. The validity of the seventy-seventh and eighty-fifth amendments to the Constitution and of the legislation enacted in pursuance of those amendments was challenged before the Supreme Court in the Nagaraj case.

1. Upholding the validity of Article 16 (4A), the court then said that it is an enabling provision. “The State is not bound to make reservation for the SCs and STs in promotions. But, if it seeks to do so, it must collect quantifiable data on three facets — the backwardness of the class; the inadequacy of the representation of that class in public employment; and the general efficiency of service as mandated by Article 335 would not be affected”.

1. The court ruled that the constitutional amendments do not abrogate the fundamentals of equality.