Reservation in Promotion

• 30 May 2022

For Prelims: SC, ST, reservation in promotions, Indra Sawhney Judgment, Article 16 (4), Article 16 (4A), Article 16(4B)

For Mains: Reservation in Public Employment and related Judgements

Why in News?

Recently, the Centre has informed the Supreme Court, that quashing of reservation in promotion to Scheduled Caste and Scheduled Tribe (SC/ST) employees in government jobs may cause employee unrest and lead to multiple litigations.

• Earlier, the Supreme Court (SC) refused to lay down the “yardstick” for determining the inadequacy of representation for granting reservation in promotions for Scheduled Caste (SC)/Scheduled Tribe (ST) candidates in government jobs.

What are the Pros and Cons of Reservation?

Pros of Reservation

Cons of Reservation

It ensures diversity in advanced education, equality in the workplace and offers protection from hatred. It helps in the emancipation of disadvantaged individuals and thereby promotes equality for all. It breaks stereotypes regarding caste, religion, and ethnicity. It increases social mobility. It is needed to compensate for centuries of oppression and discrimination and provides level-playing fields. It seeks to bring equity in society by addressing 'graded inequalities'.

There are concerns that lead to erosion of meritocracy. It can still reinforce stereotypes as it demeans the achievements of marginalized sections. People coming under the ambit of reservation, their success is labelled as a result of Reservation, instead of their capabilities and hard work. There are concerns that reservation can serve as a medium for reverse discrimination. Reverse discrimination is discrimination against members of a dominant or majority group, in favour of members of a minority or historically disadvantaged group. Due to vote bank politics, even after discrimination issues have been diminishing, it is difficult to withdraw the reservation.

What are the Important Related Judgements?

• Mukesh Kumar and Another vs State of Uttarakhand & Ors. 2020:
  • In this Case, the Supreme Court held 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 warrant.
    • However, these pronouncements in no way understate the constitutional directive under Article 46 that mandates that the state shall promote with special care the educational and economic interests of the weaker sections of the people and in particular Scheduled Castes and Scheduled Tribes.
    • In fact, sensitivity of the welfare state towards the weaker sections over decades resulted in the gradual expansion of canopy of reservation in the form of increasing classifications under Article 16, a set of actions that created a wave of litigation by which resulted in the ever-evolving jurisprudence of affirmative action in public employment.
• Indra Sawhney Judgment (1992):
  • In the judgment, a nine-judge bench presided by Chief Justice M.H. Kania upheld the constitutionality of the 27% reservation but 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.
  • The Court dwelled on the interrelationship between Articles 16(1) and 16(4) and declared that Article 16(4) is not an exception to article 16(1), rather an illustration of classification implicit in article 16(1).
    • While Article 16(1) is a fundamental right, Article 16(4) is an enabling provision.
    • 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.
• 77^th Constitutional Amendment Act:
  • The Parliament responded by enacting the 77^th Constitutional Amendment Act which introduced Article 16(4A).
  • Later, two more amendments were brought, one to ensure consequential seniority and another to secure carry forward of unfilled vacancies of a year, the former by way of addition to Article 16(4 A) and the latter by way of adding Article 16(4 B).
• M Nagaraj Case 2006:
  • In this case applying the creamy layer concept in SC/ST reservation in promotions, the SC reversed its earlier stance in the Indra Sawhney case (1992), in which it had excluded the creamy layer concept on SCs/STs (that was applicable on OBCs).
  • The SC had upheld the Constitutional amendments by which Articles 16 (4A) and 16 (4B) were inserted, saying they flow from Article 16 (4) and do not alter its structure.
  • It also laid down three conditions for promotion of SCs and STs in public employment.
    • The SC and ST community should be socially and educationally backward.
    • The SC and ST communities are not adequately represented in Public employment.
    • Such a reservation policy shall not affect the overall efficiency in the administration.
  • The court held that the government cannot introduce a quota in promotion for its SC/ST employees unless it proves that the particular community was backward, inadequately represented and providing reservation in promotion would not affect the overall efficiency of public administration.
    • The opinion of the government should be based on quantifiable data.
• Jarnail Singh Case 2018:
  • Later in 2018, in the Jarnail Singh case, SC modified the Nagaraj judgement to the extent that State need not produce quantifiable data to prove the “backwardness” of a Scheduled Caste/Scheduled Tribe community in order to provide quota in promotion in public employment.
• The Constitution (103^rd Amendment) Act, 2019:
  • The 10% reservation for Economically Weaker Sections (EWS), other Scheduled Castes, Scheduled Tribes and backward classes for government jobs and admission in educational institutions is currently under challenge before the Supreme Court which has referred the same to a constitution bench.
  • The adjudication awaited in this regard may also turn to be a critical milestone in the jurisprudence of reservation as traditional understanding of backwardness is broadened to specifically include economic backwardness without social backwardness as is traditionally seen.
• 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 which referred the same to a bench of five judges and one question was whether the 1992 judgment needs a relook.
    • Interestingly, the Supreme Court not only affirmed the Indra Sawhney decision, but also 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, citing the breach of ceiling.

What are the Constitutional Provisions for Promotion in Reservation?

• Article 16 (4): Provides that the State can make any provision for the reservation of appointments or posts in favour of any backward class of citizens who, in the opinion of the state, are not adequately represented in the services under the State.
• Article 16 (4A): Provides that the State can make any provision for reservation in matters of promotion in favour of the Scheduled Castes and the Scheduled Tribes if they are not adequately represented in the services under the State.
• Article 16(4B): Added by the 81st Constitutional Amendment Act, 2000 which enabled the unfilled SC/ST quota of a particular year to be carried forward to the next year.
• Article 335: It recognises that special measures need to be adopted for considering the claims of SCs and STs to services and posts, in order to bring them at par.
  • 82^nd Constitutional Amendment Act, 2000 inserted a condition at the end of Article 335 that enables the state to make any provision in favour of the members of the SC/STs for relaxation in qualifying marks in any examination.

Source: TH