Recently the discussion on reservation in promotions was going on in Supreme Court.
GS-II: Welfare Schemes for Vulnerable Sections of the population by the Centre and States and the Performance of these Schemes
Dimensions of the Article
- Reservation in Promotion
- Reservation not a Fundamental Right
- Major Events
Reservation in Promotion
- The jurisprudence of reservation relies on the symbiotic coexistence of constitutionally guaranteed equality of opportunity in public employment under Article 16 (1) of the Constitution of India.
- The classifications were various clauses of the same article, especially Article 16(4) and Article 16 (4 A).
- It specifically aimed to provide reservation in promotion to Scheduled Castes and Scheduled Tribes, respectively.
- These articles vested a discretion on the government to consider providing reservations for the socially and educationally backward sections of the society.
Reservation not a Fundamental Right
- It is a settled law, time and again reiterated by the Supreme Court, that there is no fundamental right to reservation or promotion under Article 16(4) or Article 16(4 A) of the Constitution.
- Rather they are enabling provisions for providing reservation, if the circumstances so warrant (Mukesh Kumar and Another vs State of Uttarakhand & Ors. 2020).
- However, these pronouncements no way understate the constitutional directive under Article 46.
- Article 46 mandates that the state shall promote with special care the educational and economic interests of the weaker sections of the people and in particular SCs and STs.
- However such provisions resulted in the ever-evolving jurisprudence of affirmative action in public employment.
(1) Mandal storm
- Reservation in employment which was otherwise confined to SC and STs got extended to new section called the Other Backward Classes (OBCs).
- This was the basis of the recommendations of the Second Backward Class Commission as constituted, headed by B.P. Mandal.
- The Mandal Commission (1980) provided for 27% reservation to OBC in central services and public sector undertakings.
- This was over and above the existing 22.5% reservation for SCs and STs, was sought to be implemented by the V.P. Singh Government in 1990.
- The same was assailed in the Supreme Court resulting in the historic Indra Sawhney Judgment.
(2) Indra Sawhney Judgment (1992)
- In the judgment, a nine-judge bench presided by CJI MH Kania upheld the constitutionality of the 27% reservation.
- But it put a ceiling of 50% unless exceptional circumstances warranting the breach, so that the constitutionally guaranteed right to equality under Article 14 would remain secured.
- While Article 16(1) is a fundamental right, Article 16(4) is an enabling provision and not an exception.
- Further, the Court directed the exclusion of creamy layer by way of horizontal division of every other backward class into creamy layer and non-creamy layer.
(3) The Constitution (Seventy-seventh Amendment) Act, 1995
- In Indra Sawhney Case, the Supreme Court had held that Article 16(4) of the Constitution of India does not authorise reservation in the matter of promotions.
- However, the judgment was not to affect the promotions already made and hence only prospective in operation, it was ruled.
- By the Constitution (Seventy-seventh Amendment) Act, 1995, which, Article 16(4-A), was inserted.
- It aimed to provide the State for making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State.
- This was to be in favour of the SCs and the STs which, in the opinion of the State, are not adequately represented in the services under the State.
- Later, two more amendments were brought, one to ensure consequential seniority and another to secure carry forward of unfilled vacancies of a year.
(4) M. Nagaraj (2006) Case
- A five-judge bench of Supreme Court declared the 1995 amendment as not vocative of basic structure of the Constitution.
- It laid down ceratin conditions which included the collection of quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment.
- The bench held that the creamy layer among SCs and STs is to be excluded from reservation.
(5) Jarnail Singh vs Lachhmi Narain Gupta (2018)
- It was authored by Justice Rohinton Nariman and indicates a critical turn in the jurisprudence of reservation.
- In this case, a constitution bench of Supreme Court was called on to examine wisdom of the 2006 judgment.
- This task was to examine the constitutionally recognised socio-economic backwardness of the SCs and STs which may not require any further substantiation.
- It was also contended that the requirement to identify creamy lawyer among SC and STs fell foul of Indra Sawhney decision.
- The constitution bench invalidated the requirement to collect quantifiable data in relation to SCs and STs.
- It upheld the principle of applicability of creamy lawyer in relation to SCs and STs.
(6) The Constitution (103rd Amendment) Act, 2019
- The 10% reservation for Economically Weaker Sections (EWS) other SCs, STs and backward classes for government jobs and admission in educational institutions.
- This is currently under challenge before the Supreme Court which has referred the same to a constitution bench.
- This was a critical milestone to specifically include economic backwardness without social backwardness as is traditionally seen.
(7) Dr. Jaishri Laxmanrao Patil vs Chief Minister (2021)
- Despite the Indra Sawhney ruling, there have been attempts on the part of many States to breach the rule by way of expanding the reservation coverage.
- The Maharashtra Socially and Educationally Backward Classes Act 2018, (Maratha reservation law) came under challenge before the Supreme Court.
- This case was referred to a bench of five judges to question whether the 1992 judgment needs a relook.
- Interestingly, the Supreme Court affirmed the Indra Sawhney decision, and struck down Section 4(1)(a) and Section 4(1)(b) of the Act which provided 12% reservation for Marathas in educational institutions and 13% reservation in public employment respectively.
- This judgment gave out a strong message that some State governments blatantly disregard the stipulated ceiling on electoral gains rather than any exceptional circumstances.
Source – The Hindu