- The recent SC judgement
- Laws about reservation
- Questions raised
- Opinion against the verdict
- Administrative efficiency
A blow against Social Justice
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The Supreme Court has ruled that states are not bound to provide reservation in appointments and promotions and that there is no fundamental right to reservation in promotions.
The recent SC judgement:
- The Supreme Court was deciding a group of appeals pertaining to reservations to SCs and STs in promotions in the posts of Assistant Engineer (Civil) in PWD, Uttarakhand.
- A Supreme Court bench of justices’ L Nageswara Rao and Hemant Gupta ruled that states are not bound to make reservations, nor is reservation in promotions a fundamental right.
- No mandamus can be issued by the court directing the state government to provide reservations, as there is no fundamental right which inheres in an individual to claim reservation in promotions.
- Hence, the top court cannot order state governments to provide reservations.
- However, if they (state) wish to exercise their discretion, Article 16 (4) and 16 (4-A) empowers the state to make such provision, but the state has to collect quantifiable data showing inadequacy of their representation in the services of the state.
- If the decision of the state to provide reservations in promotion is challenged, the state concerned shall have to place before the court the requisite quantifiable data and satisfy the court that such reservations became necessary on account of inadequacy of representation of Scheduled Castes and Scheduled Tribes in a particular class or classes of posts without affecting general efficiency of administration.
Laws about reservation:
- The Supreme Court referred to Article 16 and its clauses 4 and 4A while delivering its judgement in the matter.
- Article 16 in the Constitution of India refers to equality of opportunity in government jobs.
- 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 introduced to Article 16, empowering the state to make provisions for reservation in matters of promotion to SC/ST employees if the state feels they are not adequately represented in services. The Supreme Court had upheld the amendment as constitutional.
- 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” — 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.
- And whether it is the obligation of the state to give reservation.
Opinion against the verdict:
1. Need for a large bench hearing:
- As the case involves multiple constitutional issues, it should have been dealt with by a larger constitutional bench that included a Scheduled Caste (SC) or Scheduled Tribe (ST) judge.
- So, it is the moral responsibility of the Union Government to appeal this case and request a constitutional bench hearing.
- It must be noted that 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.
2. Reservation under fundamental rights:
- The scope for reservation for the Backward Classes is promised in Part III of the Constitution under Fundamental Rights.
- It is argued that the reservation is against Article 16 (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.
3. Reservation in promotion:
- Since, SCs and STs are poorly represented in higher posts, so denying application of reservation in promotions has kept SCs and STs largely confined to lower cadre jobs.
- This is even seen in the higher judiciary. Hence, providing reservation for promotions is even more justified and appropriate to attain equality.
- It is not correct to subdivide the scope of reservation at the entry level and in promotions; this delineation will only lead to confusion in the implementation of reservation.
- Now, by declaring that reservation in promotion cannot be claimed as a fundamental right is a dangerous precedent in the history of social justice.
4. Necessity of quantifiable data:
- The next question is about the necessity of quantifiable data to show an inadequate representation of reserved category people.
- This question has been addressed in the Constitution.
- 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.
- The responsibility of collecting data on representation by the Backward Classes lies with the state.
5. Lack of caste based data:
- The last caste-based census was in 1935, and in the pre-Independence era, by the British government.
- After Independence, no government has had the inclination to conduct a caste-based census due to political reasons.
- Even if a caste-based census is collected, the population and proportionate representation of SCs and STs will be low.
- 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%.
6. Not binding on the state to give reservation:
- The argument that it is not binding on the state to give reservation, must be noted in the light of Part III as Fundamental Rights, as 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.
- Interpreting the Constitution by paraphrasing and selective reading is dangerous.
- The 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.
- There have been many attempts to dilute reservation in the past.
- But, this judgment appears to be debatable in the larger context and should be challenged in a constitutional bench.
Since, the issue of reservation is linked with the social rights and sentiments of the depressed classes, the issue should be taken forward in a larger bench. Having said this, the rights of all the citizens of India, including the so called forward classes must also be taken care of. Reservation can be an enabling tool only when the advantage of it percolates to the person who is in real need.