Should the government have its way, the Constitution Bench of the Supreme Court that is dealing with reservations in promotions will do away with the three caveats put in by the Court in its Nagaraj ruling of 2006. While reservations in promotions were proscribed by the Indra Sawhney ruling in 1992, these were allowed as per Nagaraj, but subject to certain restrictions.
In the Nagaraj case, the Supreme Court said that the government had to collect “quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment”. And even if these two criteria were met, the government had to ensure the 50% ceiling for reservations was not breached. Though Nagaraj didn’t deal with it, Article 335 of the Constitution adds that while making reservations for SC/ST, the government has to ensure “efficiency of administration” was maintained.
While no government has, till date, demonstrated that there has been no loss in efficiency due to reservations, the Nagaraj judgment is proving to be a big hurdle since, in many cases, the government has not been able to demonstrate either backwardness or the inadequacy of representation.
In 2017, when Karnataka’s order on reservations in promotions was being argued in the Supreme Court, for instance, it was argued that while this ensured a candidate who came in through reservations could reach the third level of seniority by the age of 45, the general category candidate would only make it by the age of 56—at that point, the Supreme Court said the “fact that there is no proportionate representation in promotional posts for the population of SCs and STs is not by itself enough to grant consequential seniority to promotees”; it also maintained the government had to keep in mind “overall efficiency is not compromised”.
To get over the Nagaraj restriction, the government argued in the Supreme Court last week that the test of backwardness did not apply because SC/ST had suffered more than a thousand years. That is, the backwardness of SC/ST groups doesn’t need to be tested as it is a given.
While that sounds like a powerful argument and will appeal to all those in favour of reservations in promotions, the facts do not support the presumption of SC/ST being backward as a group. If SC/ST, as a group, had exceptionally low levels of income, or education, relative to other caste groups, the argument may still have worked.
Data from the PRICE all-India income and expenditure survey, for 2016, however, show no such across-the-board backwardness. At a macro level, the survey shows, the 66 million SC households in the country have an annual income of Rs 180,270 as compared to Rs 169,222 for 25 million ST households, rS 197,419 for 120 million OBC and Rs 242,589 for 69 million upper-caste (UC) households. So, if SCs and OBCs don’t have a very different income profile at the all-India level—on average, SC households earn a tenth less than OBC households—the reservation benefits cannot be extended at the macro level. You have to see which caste groups are actually backward.
Indeed, there are various UC households that earn less than SC/ST households. A UC household where every member is illiterate, PRICE’s data shows, earns Rs 93,756 per annum while an SC household with even primary school education earns Rs 138,152; this income is Rs 130,798 in the case of ST households with primary school qualifications. A UC household with primary education as a qualification earns Rs 148,018 per year as compared to an SC matriculate household’s earning of Rs 186,592 and Rs 184,130 for an ST matriculate household. In other words, the issue is not so much of historical backwardness as it is about access to education. When it comes to access to education, while SC/ST groups are less educated than either OBCs or UC groups, the differences are not so large as you would expect if the oppression/discrimination against SC/ST was as all-pervasive as is being made out. Around 18% of all SC households have at least one member who has completed higher secondary education, versus 19% for STs, 23% for OBCs and 25% for UCs. In the case of college degrees, the numbers are 13%, 9%, 18% and 25% respectively.
The issue of ‘creamy layer’ that applies to OBCs, but not to SC/ST groups, is also important. In the case of OBCs, any family that earns more than Rs 8 lakh per annum is considered ‘creamy layer’ and therefore not eligible for reservation benefits. The PRICE survey shows that, while there are 10 million OBC households that earn more than Rs 10 lakh per annum, there are five million SC and one million ST households that have equally high incomes. As a proportion of households in each caste category, 8.5% of all OBC households earn more than Rs 10 lakh per annum, and the number is 7% for SCs and 5.3% for STs. So, historical backwardness is not an issue, and there is a strong case for SC/ST ‘creamy layer’ as well.
Given this, the government’s argument of historical backwardness due to social atrocities is difficult to argue—in which case, if reservations in promotions are to be accepted, the Nagaraj tests will have to be carried out. Hopefully, the Supreme Court will look at the data while coming to a conclusion on whether or not the caveats put in by the Nagaraj judgment can be junked—reservations in promotions hit upper class candidates twice over, once at the time of getting a job and then at the time of getting promoted.