Reservations in Promotions

Indian Polity & Governance

Topic: General Studies 2:

• Government policies and interventions for development in various sectors and issues arising out of their design and implementation. 


Reservations in Promotions

A two judge Supreme Court judgment stated that 

• Individuals do not have fundamental right to claim reservation in promotions. 
• States are not legally bound to provide reservations in promotions. If it intends to do so then it has to justify it through quantifiable data about the inadequacy of their representation in public services.
• Courts could not issue a mandamus directing the States to provide reservation in promotion.

It shows that affirmative action programmes allowed in the Constitution flow from “enabling provisions” and are not rights as such.

What was the background of the judgement?

• Uttarakhand High court order directing data collection on the adequacy or inadequacy of representation of SC/ST candidates in the State’s services. 
• However, Supreme Court struck the order on the grounds that once there is decision not to extend reservation in promotion, then question of such data is not relevant

Constitutional Provisions with regard to reservations

• Article 16(4) – Empowers State to provide reservation for any backward classes of citizens
• Article 16(4a) – introduced in 1995 by 77th Constitutional Amendment Act – Empowers State to provide reservation in promotion in favour of SC and ST.

Both the above provisions empower the State from making reservations if, “in the opinion of the State”, these groups are “not adequately represented”

Previous Judgements on this matter

In its landmark 1992 decision in Indra Sawhney vs Union of India, the Supreme Court had held that reservations under Article 16(4) could only be provided at the time of entry into government service but not in matters of promotion.

On June 17, 1995, Parliament, acting in its constituent capacity, adopted the 77th Constitutional amendment by which clause (4A) was inserted into Article 16 to enable reservation to be made in promotion for SCs and STs.

The Supreme Court in M. Nagaraj v. Union Of India 2006 case while upholding the constitutional validity of Art 16(4A) held that it is an enabling provision i.e. State is not bound to make such reservations in promotions. However, if it seeks to do so then it must collect quantifiable data on three parameters — 

1. The backwardness of the class
2. The inadequacy of the representation of that class in public employment; 
3. The general efficiency of service would not be affected

In Jarnail Singh vs Lachhmi Narain Gupta case of 2018, the Supreme Court held that reservation in promotions does not require the state to collect quantifiable data on the backwardness of the Scheduled Castes and the Scheduled Tribes. 

The court upheld the argument that once various caste groups were listed as SC/ST, this automatically implied they were backward.

Issues with the present judgement

• Not in the spirit of affirmative action: The government does not have to show any kind of justification in deciding not to implement reservation in promotion.
• This is an opaque form of functioning and appears to be going by the letter of the law, not its spirit of providing affirmative action.
• Also, since a 5-judge bench of the Supreme Court has already upheld reservation in promotions, it is not clear whether a two-judge bench can make an interpretation that is in variance with this
• It means that government is not obligated to come with affirmative action (in promotions) if the social situation that keeps some sections backward persists

Conclusion 

• Reservation is no more seen by the Supreme Court as an exception to the equality rule; rather, it is a facet of equality.
• However, earlier judgments gave an impression that reservations were an entitlement for weaker sections of society but that it should be viewed only as an enabling provision.
• States should come up quantifiable data to monitor if reservation policies is indeed benefitting the discriminated section of society and if not then make necessary policies.

Connecting the dots!

• Creamy layer in SC/ST 
• Reservation for localities- legislation brought by AP, Maharashtra