Reservation in promotion: The road ahead

Reservation for the backward classes has impacted the course of Indian politics since the Mandal Commission’s implementation in the ‘90s. Adding another leaf to this discourse on September 26, 2018, a five-judge Constitution bench in the case of Jarnail Singh & Ors versus Lachmi Narani Gupta & Ors has set down some principles in reservation in promotion in public employment with far-reaching consequences. The issue before the bench in this case was the correctness of the decision in M. Nagaraj v. Union of India pertaining to the three-point test for grant of reservation under Article 16 4-A.

The matter of promotion in reservation revolves around four Articles of the Constitution of India: 1) Article 16 for equality of opportunity in matters of public employment, 2) Article 335 for claims of Scheduled Castes and Scheduled Tribes to services and posts while maintaining administrative efficiency, 3) Article 341 for identification of Scheduled Castes and 4) Article 342 for identification of Scheduled Tribes.

The three-point test in the Nagaraj case

In the M Nagaraj case, a three-point test was formulated for granting of reservation in promotion under Article 16 4-A:

1) quantifiable data to show backwardness of SCs and STs

2) inadequacy of representation of SCs and STs in public employment in the concerned cadre, and

3) maintenance of efficiency in administration as envisaged under Article 335 for providing reservation in the concerned cadre.

Court’s observation

On the first issue of determination of backwardness, the apex court observed that it was contrary to the nine-judge bench decision in Indra Sawhney v Union of India where the test or requirement of social and educational backwardness was held to be not applicable to Scheduled Castes and Scheduled Tribes. SCs and STs were held to be indubitably fall within the expression backward class of citizens in the Indra Swahney case. As a result, it was observed that the Presidential List contains only those castes which have been regarded as untouchables under Article 341 and the Presidential List of Scheduled Tribes only refers to those tribes in remote backward areas who are socially extremely backward under Article 342.

The court upheld the second point of inadequacy of representation of SCs and STs in public employment as a valid parameter to grant reservation in promotion. This inadequacy will have to be checked at the concerned cadre only and different cadres cannot be clubbed together to check the inadequacy in representation. The third point of maintenance of efficiency in administration as envisaged under Article 335 has also been upheld.

Along with checking the validity of the three-point test, the Supreme Court has added a new dimension of the Creamy Layer Principle to reservations in promotion for SCs and STs. This is a path-breaking line of reasoning as the Creamy Layer principle has been held to be a part of substantive equality built on Article 14 and Article 16 (1). The Creamy Layer principle is not merely a principle of identification of SCs and STs. This is a new addition to the equality jurisprudence which has been identified by the apex court to be a part of the basic structure of the Constitution and cannot thus be amended by even Parliament. This simply means that unequals within the same class cannot be treated equally and if they are treated similarly, it will defeat the larger principle of equality as enshrined in the Constitution.

It was observed that the purpose of reservation is to ensure that the backward classes gain upward mobility and march hand in hand with the other citizens of India. This noble purpose, however, will be defeated if only the creamy layer within the SCs and STs move ahead.

The apex court created a distinction between identification/exclusion of SCs and STs for the determination of backwardness under the Articles 341 and 342 and conferment of reservation on SCs and STs in order to achieve the larger goal of equality. By applying the doctrine of harmonious interpretation, it was held that when Articles 14 and 16 are harmoniously interpreted with Articles 341 and 342, it can be observed that Parliament does have the complete mandate to include or exclude persons from the Presidential lists based on relevant factors. At the same time, the Constitutional Courts will be well within their power to exclude the creamy layer from such groups or sub-groups when applying principles of equality under Article 14 and Article 16.

The road ahead

On the determination of inadequacy of representation in the Nagaraj case, the apex court has left the quantum to be decided by the State. It has been remarked by the Court that as the posts get higher, it may be apt to reduce the number of SCs and STs. At the very top, it was observed to completely do away with reservations. Furthermore, the suggestion of the Attorney General of India to consider the proportion of population as the mark for inadequacy of representation was completely turned down. This was done by juxtaposing the language of Article 330 which deals with reservation of seats in the Lok Sabha and talks about reservation according to a proportion in the population and Article 16 4A where there is no such mandate.

It will be interesting to see as to what barometer will be utilized to skim off the creamy layer. A possible route for identification of the creamy layer can be the income formula used for the identification of creamy layer within OBCs but the same has been subjected to criticism and politicization.

The author of this article is a Delhi-based advocate. (Kanika Sondhi)
The author of this article is a Delhi-based advocate. (Kanika Sondhi)

A major contradiction that might give rise to further litigation is the observation of the apex court in identifying all SCs and STs as the most backward among the backward but at the same time creating a creamy layer within them. SCs and STs can’t be the most backward among the backward classes and have a creamy layer among them at the same time. The third point in the Nagaraj case, with respect to maintenance of efficiency in administration under Article 335, will also require judicially defined tests to bring clarity. This is because there is no criteria/principle to guide the State in balancing such competing interests.

Therefore, it is extremely pertinent that the State exercises its power for determination of inadequacy of representation of SCs and STs and creamy layer among them with the Constitution’s spirit. This needs to be done without any political considerations so as to not defeat the larger goal of equality enshrined in the Constitution.

-This article has been authored by Delhi-based advocate Kanika Sondhi.

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