Reservation in Public Employment

Context

Recently the discussion on reservation in promotions was going on in Supreme Court.

Relevance

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.

Major events

(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