Analysis: SC judgement on reservation in promotions

Reading time: 6-8 minutes.

Recently, the Supreme Court in a leading case Mukesh Kumar V State of Uttarakhand, 2020 was deciding a group of appeals pertaining to the reservations to SCs and STs in promotion in the posts of Assistant Civil Engineer in Public works department, Government of Uttarakhand.

In this case SC ruled that the states are not obligated to make reservations on appointments and promotions and there is no fundamental right to claim reservation in promotions in public posts. Also the state governments are not bound to make reservation and can use their discretion in providing reservations.

Nevertheless, if the state decides to exercise its authority and make such provisions, then it must collect quantifiable data demonstrating “inadequacy of representation of that class in public services”.And it also says that, even the courts will be unable to issue a mandamus to the states directing reservations in promotions to Scheduled Castes (SC) and Scheduled Tribes (ST).

However, if the state government’s decision to grant promotional reservations is challenged then the State concerned shall submit the quantifiable data to the courts that shows that the reservations were appropriate because of the inadequacy of representation of SCs and SCs without affecting the general efficiency of the administration as mandated by Article 335. According to the SC, the individuals cannot assert reservation in promotions as their fundamental rights under Article 16(4) and Article 16(4-A) of the Indian Constitution.

These articles only empower the state to provide reservation to SCs and STs in matters of appointments and promotion in public posts, if the state thinks that they are inadequately represented in Public and Government services.

Reservation in India is a system which comprises of a series of affirmative actions that are taken by the Government of India with the main aim of uplifting the weaker sections of the society by making them eligible to get into government jobs and higher education system. Reservations basically mean that a set percentage of seats are reserved in the public sector units, union and state civil services, union and state government departments and in all public and private educational institutions, for the people of backward classes who are described by our constitution of India as Scheduled Caste (SC), Scheduled Tribes (ST) and Other Backward Classes (OBCs).

India follows a unique policy of reservation, being a multi religious country it aims to implement a temporary measure to bring each community on the same footing. The reservations in India are undertaken in order to address the historic oppression, inequality, and discrimination faced by those communities and give them a place. The intention was to promise the equality that is enriched in our constitution of India.

 In the Constitution of India there is a special provision for the betterment of the Scheduled Caste and Scheduled Tribes, along with abolition of untouchability. The purpose behind the policies of reservation was to enhance the social and educational status of the underprivileged communities and thus improves their lives.

Dr. B.R Ambedkar, also regarded as the chief architect of Indian Constitution, was instrumental in the campaign moved against social discrimination and played a major role in implementing the reservation policy in India, and argued for an extensive socio-economic rights specially for women, and with the support of Assembly, led to the introduction of a system of reservation of jobs in the civil services, schools, and colleges for the members of Scheduled Caste(SC), Scheduled Tribe(ST).The constitutional provisions that govern reservation are many some of the important ones are as follows:

  • Article 15(4):- Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
  • Article 16 guarantees equality of opportunity in matters of public employment.
    Article 16(1) provides that “there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state”.
  • Article 335 mandates that reservations have to be balanced with the ‘maintenance of efficiency’. The 2001 amendment to Article 335 clarified that the Article will not apply to the State relaxing evaluation standards in ‘in matters of promotion’.

Reservation in promotion usually means that a fixed percentage seatsof Government of India’s public sector jobs are made exclusive for the categories of people largely based on their caste or tribe.

 In the famous case of 1993, Indira Sawhney and Ors V. Union of India and Ors,“the Supreme Court ruled that reservation of appointments or posts under article 16(4) of the Constitution is confined to initial appointment and cannot extent to reservation in the matter of promotion and declared promotions of public jobs as ‘unconstitutional’which would adversely affect the interest of SCs and STs since their representation has not yet reached the required level. It was thus necessary to amend Article 16 by adding article (4A) by 77th Amendment 1995 to provide for reservation in promotion for SCs and STs, in order to continue the existing policy of reservation in promotion”.

In the leading case of M. Nagraj & Others V. Union of India & Others 2006, “the validity of all these four amendments were challenged mainly on the ground that they altered the basic structure granted by the Constitution of India. Later, the Supreme Court upheld these amendments, but stipulated that the concerned state will have to show the existence of compelling reasons before making provisions for reservation, which includes ‘backwardness’, ‘inadequacy of representation’ and overall ‘administrative efficiency’. Further it states that if the state wishes to make provisions for reservations to ST/SC in promotions, then they need to collect and show quantifiable data proving backwardness and inadequacy of representation of that particular class”.

 A 5 judge bench of the Supreme Court in the case of Jarnail Singh v. LachhmiNarain Gupta 2018, held that there cannot be an insistence on collection of quantifiable data of backwardness in relation to SCs and STs. And any such insistence was held to be against the judgment ruled in Indira Sawhney case. Later in B.K. Pavitra V Union Of India2019, “ the Supreme Courtupheld the Constitutional validity of the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act 2018”. The said enactment provided for consequential seniority to the persons belonging to SC and ST promoted under the reservation policy of state of Karnataka.

However, the latest judgment in the case of Mukesh Kumar v State of Uttarakhand is not without problems, as it states “that there is no fundamental right which inherits an individual to claim reservations in promotions”. The Court the power to direct the state government to grant reservations at a specific level to specific communities is a dangerous move in itself. 

So apart from its cons the ruling is somewhat beneficial, as now in order to provide reservation in promotion the state needs to show quantifiable data of the particular class being inadequately represented because the ultimate aim of reservations was to give the equal opportunity and position in the society to the people of oppressed class defined as SCs and STs and make them at par with others and the policy of reservation in jobs, education and appointments was highly misusedand it is quite necessary to keep a check on it because of which the ruling in the latest judgment seems correct.

Therefore, the policies of government that provides caste based reservations SCs, STs, and OBCs are somewhat unjust to the general public as a whole. Because the reservation policies were made for uplifting the backward sections but are highly misused now-a-days by a lot of people for their personal benefit and many people are trying to make fake caste certificates to get the fruit of reservations.

Also a lot of deserving candidates are denied seats just because of already reserved seats in jobs and educational institutions. Similarly, in my view the policy of reservation in promotions are also unjust and it should be based on ability and seniority of a person rather than caste.

Author: Bhakti Rathi from NMIMS Kirit P. Mehta School of Law.

Editor: Tamanna Gupta from RGNUL, Patiala

Explained: SC/ST reservation extension

Reading time: 8-10 minutes.

“I like the religion that teaches liberty, equality, and fraternity.”
“Indifferentism is the worst kind of disease that can affect people.”
-Bhimrao Ramji Ambedkar

The Parliament has passed the bill that proposes to increase the reservation quota for SCs and STs within the Lok Sabha and therefore the state assemblies by another 10 years. The Constitution 126th Amendment Bill was passed within the Rajya Sabha on 12th December 2019.

The bill was passed within the upper house of the Parliament with 163 votes in favor and none against. The voting had taken place through division, because it was a constitution amendment bill. The Lok Sabha had passed the bill on 10th December 2019.

 The Constitution 126th Amendment Bill will now be sent to the states for ratification by a minimum of 50% of the assemblies before it’s brought into force.

The extension of the ST-SC quota within the legislatures is being considered significant to encourage the expansion of more new political leaders from the 2 communities.

Constitution 126th Amendment Bill:

• The Constitution 126th Amendment Bill was passed within the Lok Sabha with 352 members voting in favor and none against it.

 • The Indian Constitution provides for reservation of seats for the SC and ST community and representation of the Anglo-Indian community in sort of nomination within the Lok Sabha and therefore the legislative assemblies of the states.

 • the supply was included for 70 years since the enactment of the Constitution on 26th January 1950. Hence, it’s scheduled to expire on 25th January 2020

 • The Constitution 126th Amendment Bill seeks to increase the reservation quota for the SC and ST community by another 10 years, till 25th January 2030.

History

The reservation system in India dates back to the 2nd century B.C. where the upper crust enjoyed certain added privileges. consistent with some texts, several centuries later during the Gupta period, Brahmins got certain facilities that the opposite varnas were denied.

 A caste-based reservation system was originally thought of by William Hunter and Jyoti Rao Phule in 1882. A sort of it had been implemented by Chhatrapati Shahuji in 1901. However, the reservation system that exists today, in its true sense, was introduced in 1933 when British Prime-Minister Ramsay Macdonald presented the ‘Communal Award’.

This made a provision for separate electorates for Muslims, Sikhs, Indian Christians, Anglo-Indians, Europeans, and therefore the Dalits. This system was opposed by Gandhi who fasted in protest against it. But many minorities and leaders like B.R. Ambedkar supported it.

 After long negotiations, Gandhi and Ambedkar signed the ‘Poona Pact’, where it had been decided that there would be one Hindu electorate with certain reservations in it.

Electorates for other communities like Muslims and Sikhs remained separate.

After India’s Independence, there have been some major changes in favor of the STs, SCs and OBCs. one of the foremost important occurred in 1979 when the Mandal Commission was established to assess things of the socially and educationally backward classes.

But it wasn’t until the 1990s that the recommendations of the Mandal Commission were implemented in government jobs.

Why was the quota introduced?

The two main aims to supply reservations as per the Constitution of India are:

  • Advancement of Scheduled Castes and therefore the Scheduled Tribes or any socially and educationally backward classes of citizens or economically weaker sections -Article 15 (4), Article 15 (5) and Article 15 (6).
  • Adequate representation of any backward class of citizens or economically weaker sections within the services under the State. – Article 16 (4) and Article 16 (6).

The deep-rooted class structure in India is that the actual explanation for the reservation system.

Dominantly, the skin-color the person was taken under consideration at the time when the class structure came into being just like the fairer ones enjoyed being Brahmins or upper caste and therefore the darker ones were Shudras or lower caste.

This led to the entire segregation of our society and to equalize this, the thought of reservation came into existence after independence. Hence in 1950, the quota for backward classes was made and from time to time many new quotas and reservations are added to the present. It is a social action because it reduces the gap between upper caste and lower castes.

In India, the class structure and therefore the arrangements of reservation strategy go as an inseparable unit. Indian social framework may be a caste-based hierarchical framework. The lower position individuals were constantly abused by the overall population from high castes and that they needed to endure the negative marks of monetary underdevelopment.

The goal of the reservation is to inspire the weaker segments of society, that’s those individuals who are being separated by the upper class and that they are discriminated against supported social and financial grounds.

The constitution not just discusses the elimination of discrimination against any native yet it likewise offers the capacity to the law-making body to form laws that will give special treatment to weaker segments of the overall public during a method for reservation within the legislature, employment, and academic institutions.

Constitutionality

  • Article 46 of the Constitution provides that the State shall promote with special care the tutorial and economic interests of the weaker sections of the society and especially, of the Scheduled Castes and Scheduled Tribes and shall protect them from social injustice and everyone sort of exploitation.
  • Reservation within the institution has been provided in Article 15(4) while reservation in posts and services has been provided in Article 16(4), 16(4A) and 16(4B) of the Constitution.
  • Article 23 which prohibits traffic in the citizenry and therefore the beggar and other similar sorts of forced labor features a special significance for Scheduled Tribes. In pursuance of this text, Parliament has enacted the Bonded Labour System (Abolition)Act, 1976.
  • Similarly, Article 24 which prohibits employment of youngsters below the age of 14 years in any factory or mine or the other hazard’s activity is additionally significant for Scheduled Tribes as a considerable portion of kid labor engaged in these jobs belong to Scheduled Tribes.
  • Article 243D provides reservation of seats for Scheduled Tribes in Panchayats.
  • Article 330 provides reservation of seats for Scheduled Tribes within the House of the People.
  • Article 332 provides reservation of seats for Scheduled Tribes in Legislative Assemblies of the States.
  • Article 334 provides that reservation of seats for Scheduled Castes and Scheduled Tribes within the Lok Sabha and therefore the State Vidhan Sabhas by nomination) would continue up to January 2020.

Removal of reservation for Anglo-Indian community

Recently, the Union Cabinet has approved the removal of reservations for Anglo-Indians in legislative bodies.

Anglo-Indians were provided two nominated seats in the Lok Sabha and one nominated seat in the State Legislative Assemblies to ensure adequate representation of the community in elected legislative bodies.

Anglo-Indians constitute a religious, social, as well as a linguistic minority. Being numerically an extremely small community, and being interspersed all over India, the Anglo-Indians were provided reservations in legislative bodies.

The reservation for the Anglo-Indian community was extended until the year 2020 through the 95th Amendment, 2009. Originally, this provision was to operate until 1960.

Constitutional provisions

  • Article 366: It defines Anglo-Indian as a person whose father or any of whose other male progenitors in the male line is or was of European descent but who is domiciled within the territory of India and is or was born within such territory of parents habitually resident therein and not established there for temporary purposes only.
  • Article 331: It states that the President can nominate two members of the Anglo-Indian community to the Lok Sabha if the community is not adequately represented.
  • Article 333: It states that the Governor of a State may if he believes that the Anglo-Indian community needs representation in the Legislative Assembly of the State and is not adequately represented therein, nominate one member of that community to the Assembly.
  • Article 334(b): The reservation of the Anglo-Indian community in the Legislative bodies was extended for 40 years in 1949 through the insertion of this article.
  • National Commission for SCs (Article 338): It investigates all matters relating to the Constitutional and other legal safeguards for the Anglo-Indian community and report to the President upon their working.

The political angle of reservation

Reservations are nothing but means to prosper the vote banks of politicians.

They are hindering the country’s growth, development, and competency in all aspects. On one hand, the preamble of our constitution states that we are a free, democratic and sovereign nation and on the other hand reservation system is chaining all these aspects into its clutches.

But in recent times, it would be a trump card for the political parties. They use it for their voting campaign to get more and more support. That’s probably to separate us from “One Nation One Policy”. It breaks the integral unity of the country.

For any successful government, it must assure full safety, security freedom and equality to its citizens. That’s the real beauty of a “Democracy”.

Should India need a reservation?

The government must provide equality of status and opportunity in India. Reservation is one of the tools against social oppression and injustice against certain classes. Otherwise referred to as social action, reservation helps in uplifting backward classes.

 However, reservation is simply one among the methods for social upliftment. There are many other methods like providing scholarships, funds, coaching, and other welfare schemes.

Indian Constitution allowed reservations just for socially and educationally backward classes. However, in India, it became a caste-based reservation rather than a class-based reservation. Initially, the reservation was intended just for SC/ST communities- that too for 10 years (1951-1961)

 However, it got extended ever since. After the implementation of the Mandal Commission in 1990, the scope of the reservation was widened to incorporate Other Backward Communities. Even 70 years after independence, the demand for reservation has only increased.

Conclusion

In the 21st century, it’s quite debatable if the caste of an individual even forms an inexpensive basis for reservation in government jobs and colleges. many of us of lower castes have stepped up the social ladder and are now on an equal footing with the ‘general’ population.

 On the opposite hand, many upper castes are still affected by poverty and illiteracy. However, the caste-based reservation can’t be claimed to be completely irrelevant because the time during which it had been created India had many discriminatory laws and rules made by religious heads on various levels. Even today, the class is exploited and discriminated against after 62 years of the abolishment of untouchability as is clear within the case of Rohith Vemula.

But the country needs a far better basis of reservation which incorporates the poor and therefore the backward groups and excludes the rich and therefore the dominating sections among all castes. The present reservation system can harm the economic structure of the country because it could bring down the efficiency of its labor. many of us argue against this as, for them, people’s right to equality is more important than the efficiency of labor.

 It is definitely that this reservation system requires serious amendments. But, a neighborhood of the responsibility also falls on the masses that ought to abstain from any violence. The fate of the country now depends on the choice of the govt and a replacement reservation system which it’s going to prefer to formulate. If no such move is initiated by the govt, India would descend to the Middle Ages of ignorance, communalism, and violence.Reforms within the reservation system of India is the need of the hour.

Author: Preeti Singh Bhadoria from Lloyd Law College, Greater Noida.

Editor: Tamanna Gupta from RGNUL, Patiala.