In arguing for untrammelled right to reservation in promotion, the principle of ‘constitutional reasonableness’ ingrained in equality is being ignored
By Satya Prasoon and Disha Choudhary
On September 26, 2018, a constitutional bench of the Supreme Court (SC), in the Jarnail Singh case, unanimously held that the judgment delivered in Nagaraj in 2006, relating to reservations in promotions for SC/ST persons, does not need reconsideration by a larger seven-judge bench. It struck down the demonstration of further backwardness criterion from Nagaraj, but added that the principle of creamy-layer exclusion would apply to SC/STs. The principle was earlier used to exclude relatively-forward members of OBCs from getting reservation. In Nagaraj, the SC had held that it was not mandatory for states to grant reservations in promotions and it was left to the discretion of the state. If the state exercised its discretion, it was to collect quantifiable data to demonstrate backwardness and inadequacy of representation while accounting for administrative efficiency.
Even though the demand for Nagaraj review to do away with controlling checks on reservation in promotion has been rejected, it is an occasion to rethink disquietudes and be aware of subterranean tensions that might manifest in dangerous ways if states keep taking absolutist position with respect to SC/ST reservation.
Overturning court orders
What does it say about sovereignty of law if court precedents are overturned on a routine basis by Parliament? With the court introducing creamy-layer restriction for reservation in promotions, a constitutional amendment could be on the cards.
This has been a bitterly contested issue between Parliament and the SC. The court, in Indra Sawhney (1992), held that Article 16(4) did not provide for reservation in promotion. Parliament responded by introducing a series of constitutional amendments between 1995 and 2001 (77th, 79th, 81st, 85th) that legalised reservation in promotion and overturn unfavourable judicial pronouncements.
The tussle is an apt reminder that, in the matters of direct confrontation, the SC is only as strong as Parliament wants it to be. The decision of Indra Sawhney was overturned by Article 16(4A), explicitly providing for reservation in promotion.
To cite another example, the SC in Virpal Singh and Ajit Singh attempted to address heartburn among general candidates by introducing the Catch-Up Rule. Under this, a general candidate who became junior to a reserved category candidate would retain his seniority upon promotion. This was also nullified by adding “consequential seniority” to the text of Article 16(4A).
Further, the balancing check introduced through Indra Sawhney that reservation shouldn’t exceed 50% in a given year was nullified by introducing the Carry Forward Rule through Article 16(4B) amendment. Under this, if the reserved posts were not filled in a year for want of suitable SC/ST candidates, then the shortfall was to be carried forward to the next year and 50% ceiling would not apply.
Lastly, Article 335, which provides that reservation in promotion claims would be subject to administrative efficiency, was eviscerated by adding an exception to Article 335. The exception allowed lowering of minimum qualifications for accommodating SC/ST in public employment.
All amendments cited above were upheld by the court in Nagaraj, with the imposition of strict conditions for allowing reservation in promotion.
With Jarnail Singh, this last vestige of resistance erected in Nagaraj was sought to be undone. Now, with the court excluding creamy-layer individuals from getting reservation in promotions, the government might take the familiar path of overturning uncomfortable dicta with brute parliamentary majority.
Social justice vs equality
The state’s quest for elevating reservation in promotion to a fundamental right signalled a shift in normative canopy. Rather than viewing positive discrimination as a means to achieve equality, the new approach was one that was willing to sacrifice equality at the altar of social justice. In arguing for untrammelled right to reservation in promotion, the principle of ‘constitutional reasonableness’ ingrained in equality is being deliberately ignored. The refusal to submit any quantifiable data on backwardness or inadequate representation to justify reservation in promotion demonstrated disregard for reasonableness, an essential facet of equality.
The court correctly understood that social justice through reservation cannot fall foul of equality, no matter how pressing the need, and the creamy-layer exclusion is a principle of equality. Non-exclusion of creamy layer (the forward among SC/STs) would violate the right to equality: First, by treating equals—general category and the forward among backward classes (SC/ST)—differently. Second, by treating unequals—backward classes and the forward among backward classes—similarly.
Those who argue for untrammelled reservation in promotion forget that social justice through representation matters because equality is the basic feature/grundnorm of the Constitution.
The spiralling effect
The sterile state imagination to not comprehend inequality beyond caste and not see beyond quota politics has been a permanent fixture of statepolitik. However, the containment strategy of boxing SC/ST grievances within affirmative action policies is oblivious to the current churning in Dalit politics, which is simultaneously clamouring for politics of dignity as was visible through Una and Bhima Koregaon protests, and the rise of the Bhim Army.
A more nuanced understanding of “the new Dalit challenge” is essential to deter governments from taking stubborn positions with respect to reservation, so that they don’t bind themselves in knots.
Absolutist positions on reservation for SC/STs will restrict states’ manoeuvring space for managing the resentment amongst other socially-dominant groups—Jats, Marathas, Patidars—who want inclusion within the OBC fold.
The position taken by the Union and states of doing away with controlling checks is likely to raise similar demands for dilution of constitutional checks for grant of OBC status to other dominant classes. Any policy objection could implode into a grave law-and-order problem.