Reservation in promotion: Here’s why Supreme Court is wrong in this case

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Published: February 11, 2020 4:00:11 AM

The SC rules that the State can make up its mind on the adequacy and it is only when it decides that reservation in promotions has to be given that it actually needs to collect data to justify this; if it feels no reservations are required, it doesn’t need to justify this with data.

Equally important, 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.Equally important, 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.

Those opposed to reservations in promotion will welcome last week’s Supreme Court ruling by a two-judge bench that such quotas are not absolute despite what Article 16(4) says, and that the state government is empowered to take a call on it. This is welcome since, in any case, the reserved categories have already benefitted once at the time of their appointment to government services; indeed, when the Karnataka law granting reservation in promotions was challenged in the Supreme Court, it was shown that such reservation ensured that a reserved category candidate could reach the third level of seniority by the age of 45 while a general category candidate could get there only by the age of 56. Welcome as it seems, the verdict, however, seems odd in many respects.

Article 16(4) and 16(4a) both talk of nothing preventing the State from making reservations if, “in the opinion of the State”, these groups are “not adequately represented”. The SC rules that the State can make up its mind on the adequacy and it is only when it decides that reservation in promotions has to be given that it actually needs to collect data to justify this; if it feels no reservations are required, it doesn’t need to justify this with data. This is an opaque form of functioning and appears to be going by the letter of the law, not its spirit since the public is never to know what data was used by the state government while rejecting what Article 16(4a) promises. Equally important, 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.

The courts have, no doubt, watered down the original Nagaraj judgment on reservations in promotions. While Nagaraj said the government had to get data to show SC/ST were in fact backward, the SC overturned this in 2018; it ruled that, once various caste groups were listed as SC/ST, this automatically implied they were backward. While this was unfortunate since there is enough evidence to show education changes economic backwardness—this newspaper has, in the past, used data to show that better-educated SC/ST earn more than illiterate or poorly-educated upper castes—the SC 2018 ruling upheld another important part of Nagaraj. It said the government had to show that, once this reservation in promotions was done, it would not affect the efficiency in government administration. Whether anyone will be able to argue efficiency in government can get affected, though, remains an open question. In the past, while arguing for reservation in higher degrees like MS and MD—not allowed under Indra Sawhney—the SC had ruled MS and MD were not super-specialities. In another ruling on “efficiency of administration”, an SC judgment ruled that this “must be defined in an inclusive sense, where diverse segments of society find representation … while interpreting Article 335, it is necessary to liberate the concept of efficiency from a one-sided approach which ignores the need for and the positive effects of the inclusion of diverse segments of society on the efficiency of administration of the Union or of a State”. Those looking for the courts to help roll back both reservations and promotions-in-reservations are going to be disappointed; it is only when the political class is ready that this can happen.

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