By PS Krishnan*
A study and analysis of the judgments of the Supreme Court, especially the recent judgments striking down reservation in promotion in UP, Rajasthan and certain other States and related judgment in the Nagaraj case and the portion of the Mandal judgement relating to reservation in promotion show that difficulties arise for the Scheduled Castes (SCs) and Scheduled Tribes (STs), and also the Socially and Educationally Backward Classes (SEdBCs) on account of certain views taken by the Honourable court while interpreting the constitutional provisions as they exist.
The immediate problem pertains to the impasse that has arisen in the matter of reservation in promotion for SCs and STs. Matters pertaining to reservation in promotion for SCs and STs in States including Maharashtra and Madhya Pradesh have reached the Supreme Court following High Court judgments striking down reservation in promotion in those States. These have been referred to a Constitution Bench and posted to 3rd August 2018.
The views taken by the court, from which these difficulties have arisen in the case of reservation in promotion for SCs and STs, are the following:
(i) The courts have held that the Right to Equality under article 16(1) is the fundamental right of every citizen; but clauses (4) and (4A) of Article 16 do not confer a fundamental right on the classes for whom reservation is provided or is sought to be provided.
(ii) Clause (4) of Article 16 is discretionary. SCs and STs, and also SEdBCs, cannot claim reservation as a fundamental right. It is a matter of the State’s discretion to provide or not to provide reservation. Similarly clause (4A) of Article 16 is also discretionary and SCs and STs cannot claim reservation in promotion as a fundamental right as it is a matter of State’s discretion.
(iii) If the State considers it necessary to provide reservation, including reservation in promotion, it must show by data that the following conditions for exercising the discretion exist:
- Compelling reasons
- Inadequate representation in the services
They also have laid down that the following should also be ensured:
- Exclusion of “Creamy layer”
- Efficiency of administration required by Article 335 should not be compromised
- Reservation should not be extended indefinitely
There is plenty of data available to show that SCs and STs are inadequately represented, especially in higher posts to which appointments are made by promotion. Department of Personnel usually give data only for Groups as a whole, namely, Group A, Group B, Group C and Group D (now Groups C and D have been merged into Group C). Group A, for example, includes the levels of Under-Secretary, Deputy Secretary, Director, Joint Secretary, Additional Secretary and Secretary. While there is inadequate representation in Group A and Group B as a whole, if data are furnished by the Department of Personnel separately for each level in each Group, it will be seen that their inadequacy becomes severer and severer at each higher level. Thus there is only one Secretary at present belonging to the SCs. The position is similar with regard to STs.
It is erroneous to associate reservation with lack of efficiency. States in which reservation were introduced earliest are the most advanced in various parameters of development and welfare than the States in which reservation was introduced after a lot of delay and misguided resistance. The set of States in which the Princely States, Provinces and Presidencies introduced reservation earliest, even before Independence, have thereby been able bring out the merit existing in certain classes, but which were suppressed by a small elite at the top. Thus, reservation is a means of promoting and enhancing efficiency.
It is not correct to say that reservation is discretionary. The basic Constitutional features of Equality, which includes Social Equality, and Justice, which includes Equality of Status or Social Justice, make all measures of Social Justice to achieve Social Equality mandatory. Reservation is an essential part of these Social Justice measures. Reservation was and is inevitable in a society hamstrung by the rigid Caste System with “Untouchability”. That is why reservation was introduced starting with as long back as 1902 and is continued. The Supreme Court needs to help this process to continue smoothly and not to downgrade it by dubbing it as discretionary, which it is not.
It is nobody’s case that reservation should be a permanent feature. It need not be continued for one day longer than the termination of the conditions which necessitated reservation as an important part of Social Justice measures. In the case of SCs and STs, reservation including reservation promotion will have to be continued until:
(a) their representation, at all levels of the services in each cadre, reaches the proportion equivalent to their proportion in the population of the country, in the case of the services under the Union of India and of the respective States of the Union in the case of the services under the States of the Union; and
(b) until the State enables the Scheduled Castes and Scheduled Tribes to become capable, through open competition, of maintaining the level of representation mentioned at (a); and
(c) “untouchability” and vulnerable tribal isolation and all their consequences completely disappear and the Scheduled Castes and Scheduled Tribes reach the level of equality with the Socially Advanced Castes, i.e., non-Scheduled Caste, non-Scheduled Tribe, non-Backward Class castes in all parameters of development and welfare.
*Excerpts from the former IAS officer’s letter to Union minister Thaawar Chand Gehlot on Constitutional Amendments sought by the Supreme Court on conditionalities laid down by the Supreme Court in the Nagaraj case, 2006