Supreme Court order on reservation: All you need to know
A Supreme Court order mandating that states are not legally bound to grant reservation in public services has reignited a longstanding political battle. Here's a look at the turn of events following a recent Supreme Court order on reservation
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Supreme Court order on reservation: All you need to know
Supreme Court of India
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It was a clamorous day at Lok Sabha on Monday as opposition parties targeted the government over recent Supreme Court judgement which rules that states are not legally bound to provide reservation to Scheduled Castes and Scheduled Tribes in government jobs. In its decision last week on Friday, the top court also stated that individuals do not have a fundamental right to claim reservation in promotions.
The ruling came against an Uttarakhand High Court order. The Supreme Court order irked the opposition parties who demanded discussion on the judgement in both Houses of the Parliament. While the Centre has denied any role in the matter, the opposition has called the Modi government opposed to reservation to backward sections.
Here's a look at what the Supreme Court order says, does the Constitution allow it, and who's saying what:
What did the Supreme Court say on reservation?
A Supreme Court bench of justices L Nageswara Rao and Hemant Gupta ruled that states are not bound to make reservations, nor is reservation in promotions a fundamental right. The top court said that it cannot order state governments to provide reservations.
"In view of the law laid down by this court, there is no doubt that the state government is not bound to make reservations. There is no fundamental right which inheres in an individual to claim reservation in promotions. No mandamus can be issued by the court directing the state government to provide reservations," the bench said in its order.
The state governments can grant reservation to scheduled castes and scheduled tribes at their own discretion, but will have to collect quantifiable data which shows their inadequate representation in public services. The Supreme Court has said that states can grant reservation to certain classes, but "there must be some material on the basis of which the opinion is formed".
The Supreme Court decision came against pleas regarding Uttarakhand government's September 5, 2012 decision to fill up all posts in public services in the state without providing reservations to Scheduled Castes and Scheduled Tribes. The government's decision was challenged in the Uttarakhand High Court, which struck it down
What does the constitution say?
The Supreme Court referred to Article 16 and its clauses 4 and 4A while delivering its judgement in the matter. Article 16 in the Constitution of India refers to equality of opportunity in government jobs.
Article 16 (4) states: "Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State."
Article 16 (4A), which was introduced in 1995, states: "Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State."
To summarise, the Constitution of India grants state government the power to reserve vacancies for backward sections, and even grant reservation in matters of promotion for posts under it. This can be done if the state believes that the reserved categories are inadequately represented in public services under it.
What is Modi government's stand?
While the opposition is holding the Centre accountable for the Supreme Court order on reservation, the union government has said that it was not a party in this legal battle. Social Justice and Empowerment Minister Thawar Chand Gehlot told Lok Sabha that the Centre was also not asked to file an affidavit on the issue.
Gehlot also pointed out that the Supreme Court order refers to a Uttarakhand government notification from 2012, when Congress was in power in the state. The Social Justice Minister said that the Centre is studying the subject and will take an appropriate decision.
Meanwhile, Rajnath Singh, Defence Minister and Deputy Leader of House, said in Lok Sabha that the opposition is politicising a sensitive issue.
What is the opposition saying?
Following the Supreme Court order, Congress leader Rahul Gandhi said that the BJP and RSS are trying to erase reservations. "The ideology of the RSS and the BJP is against reservation. The RSS and the BJP cannot stand the idea that Dalits, tribals and OBCs have reservations. They (the RSS and BJP) wake up every morning and this (reservation) irritates them. Except it is in our Constitution, and these rights are guaranteed by our Constitution," Gandhi said while talking to reporters outside the Parliament.
Former Finance Minister P Chidambaram said the BJP government cannot distance itself from the Supreme Court's decision not to make reservations compulsory. "The BJP government of Uttarakhand put forward the argument that was accepted by the Court. BJP must own up to the judgement and tell us if it will reject the declaration of law," Chidambaram said in a series of tweets.
If the BJP does not agree with the decision, let it say so and implement corrective measures, Chidambaram said.
SC quota ruling is nothing new — reservation in jobs was never a fundamental right
SC ruling that reservations in jobs, promotions are not a fundamental right reiterates a long-held reading of constitutional provisions on quota.
Apoorva Mandhani 12 February, 2020 12:01 pm IST
The Supreme Court of India | Photo: Manisha Mondal | ThePrint
The Supreme Court of India | Photo: Manisha Mondal | ThePrint
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New Delhi: The Supreme Court Friday ruled that there is no fundamental right to reservations in appointments and promotions under articles 16(4) and 16(4A) of the Constitution.
The apex court ruled that it was the discretion of the governments, either at the state or central level, to grant reservation in promotions. The ruling has since evoked a sharp response from various stakeholders and political parties.
Congress leader Rahul Gandhi accused the BJP and the RSS of having always been against reservations to weaker sections of society. He added that the Congress would not let quotas in jobs and education come to an end.
The CPI claimed that Dalits, tribals and backward classes are “disappointed and agitated” with the Supreme Court ruling.
However, the fact that reservation cannot be claimed as a fundamental right is a settled position under the law, and has been pointed out by several judgments in the past.
The Supreme Court’s judgment Friday relied on these precedents to rule that since it is not a fundamental right, the government is not obligated to collect quantifiable data showing a community is inadequately represented in public services — as required by Article 16(4A) — if it has already decided not to grant reservations in promotions.
ThePrint explains the precedents and chronicles the dispute that culminated in the Supreme Court’s latest judgment.
Also read: Collegium system needs reconsideration, says former Supreme Court judge AK Sikri
What does the Constitution say on reservations?
Article 14 of the Constitution guarantees equality before law and equal protection of laws to everyone. Similarly, Article 16(1) and 16(2) assure citizens equality of opportunity in employment or appointment to any government office.
Article 15(1) generally prohibits any discrimination against any citizen on the grounds of religion, caste, sex or place of birth.
Additionally, Article 29(2) bars discrimination against any citizen with regard to admission to educational institutions maintained by the government or receiving aid out of government funds on grounds of religion, race, caste etc.
However, Articles 15(4) and 16(4) state that these equality provisions do not prevent the government from making special provisions in matters of admission to educational institutions or jobs in favour of backward classes, particularly the Scheduled Castes (SCs) and the Scheduled Tribes (STs).
Article 16(4A) allows reservations to SCs and STs in promotions, as long as the government believes that they are not adequately represented in government services.
What do the precedents say?
There are several major Supreme Court judgments that have, in the past, ruled that Articles 15(4) and 16(4) do not provide a fundamental right per se.
A five-judge apex court bench, as early as 1962 in the M.R. Balaji v. State of Mysore had ruled that Article 15(4) is an “enabling provision”, meaning that “it does not impose an obligation, but merely leaves it to the discretion of the appropriate government to take suitable action, if necessary”.
The court was hearing a challenge to an order passed by the erstwhile state of Mysore reserving 68 per cent of seats in engineering and medical colleges for educationally and socially backward classes and SCs and STs.
Five years later, in 1967, another five-judge bench in C.A. Rajendran v. Union of India reiterated this position, holding that the government is under no constitutional duty to provide reservations for SCs and STs, either at the initial stage of recruitment or at the stage of promotion.
Article 16(4), it said, does not confer any right on the citizens and is an enabling provision giving discretionary power to the government to make reservations.
The position went on to be reiterated in several other decisions, including the nine-judge bench ruling in Indra Sawhney v. Union of India (1992) and the five-judge bench decision in M Nagaraj v. Union of India (2006).
Also read: We know the number of cows & pigs in India, but not those of OBCs & Brahmins
How did the case reach the Supreme Court?
The controversy in the current case pertained to reservations to SCs and STs in promotions for the post of assistant engineer (Civil) in the Uttarakhand government’s Public Works Department.
The reservation was initially provided for under the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994. Section 3(7) of this Act stated that the government orders providing for reservations in promotions, which were in force in the time of commencement of the Act in 1994 would continue to operate, until modified or revoked.
After the formation of Uttarakhand in 2001, the Act was made applicable to the new state, with a few modifications. Section 3(7) was, however, subsequently held unconstitutional by the Uttarakhand High Court in 2011.
The state government then constituted a committee for collection of quantifiable data on the backwardness of the reserved communities in Uttarakhand and the inadequacy of their representation in public posts, to satisfy the condition under Article 16 (4A).
In 2012, the then state government decided that all posts in public services will be filled up without any reservations for SCs and STs. All government orders providing for such reservations were also scrapped. This was once again challenged in the high court.
The Uttarakhand High Court then struck down the State’s 2012 decision in April last year. A review petition against this order was filed in the high court, which did acknowledge that Article 16 (4A) is an enabling provision.
But it directed the state government to collect quantifiable data regarding inadequacy of representation of SCs and STs in state services, and then take a decision on providing reservations in promotions. This decision was challenged in the Supreme Court.
What SC ruled?
The apex court has now re-iterated that Articles 16(4) and 16(4A) do not confer any fundamental rights to claim reservations in promotion. It is for the state government to decide whether reservations are required for appointment and promotions to public posts, it said.
“It is settled law that the State Government cannot be directed to provide reservations for appointment in public posts. Similarly, the State is not bound to make reservations for Scheduled Castes and Scheduled Tribes in matters of promotions,” it observed.
However, if the state government does want to exercise this discretion and provide reservations, it would have to first collect quantifiable data showing inadequacy of representation of that class in public services.
The court then opined that the high court should not have struck down the state government’s 2012 decision to not provide reservation in promotions.
It further ruled that since Article 16(4) and 16 (4A) do not provide a fundamental right, courts cannot issue a direction to the state government to provide reservations. It clarified that since the state government had decided not to provide reservations, it did not have to collect quantifiable data at all.
With these observations, it set aside the high court order.
Reservation in jobs to FIR in SC/ST Act: Caste-based rights get realigned in Supreme Court
With two significant rulings on Monday, the Supreme Court has put the Narendra Modi government in a fix in the first case while given respite in the second.
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Prabhash K Dutta
New Delhi
February 10, 2020
UPDATED: February 10, 2020 17:57 IST
The Supreme Court has made the reservation optional in a sense. (Photo: PTI)
Two significant rulings have come from the Supreme Court which may give fresh impetus to caste-based politics with job market staying sluggish and caste becoming ever more dominant a pitch in political narratives.
First, the Supreme Court ruled that the state governments are not bound to fill vacancies in accordance with the rules of reservation for the Scheduled Castes, Scheduled Tribes and the Other Backward Classes (OBCs).
Second, the Supreme Court has upheld an amendment that the Narendra Modi government had brought in 2018 to overturn its judgment in case relating to the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
Both matters are politically sensitive and the Supreme Court has put the Modi government in a fix in the first case while given respite in the second.
SUPREME COURT ON RESERVATION
In the case of reservation, the Supreme Court refused to issue direction to the Uttarakhand state government to provide reservation to SC/ST candidates in fulfilling vacancies holding that quota in jobs is not a fundamental right. The Supreme Court ruled, "No mandamus can be issued by the court directing the state government to provide reservations."
The Supreme Court ruled, "It is settled law that the state government cannot be directed to provide reservations for appointment in public posts. Similarly, the state is not bound to make reservation for Scheduled Castes and Scheduled Tribes in matters of promotions."
WHY IT MATTERS?
The Supreme Court has made the reservation optional in a sense. "If they (states) wish to exercise their discretion and make such provision, the state has to collect quantifiable data showing inadequacy of representation of that class in public services," the Supreme Court said.
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This may be interpreted as departure from the understanding with regard to reservation in jobs. The earlier ruling of the Supreme Court fixing the limit of reservation at 50 per cent of the total vacancies has been interpreted as a mandatory rule for the government to provide reservation for SC/ST and OBC candidates in all fresh appointments.
But in the latest judgment, the Supreme Court has interpreted Article 16 to say, "It is for the state government to decide whether reservations are required in the matter of appointment and promotions to public posts."
The Supreme Court held that the Constitution empowers the state to provide for reservation of seats in favour of the SC/ST candidates in matters of appointment and promotion "if in the opinion of state they are not adequately represented in the services of the state".
The court also held inadequacy of representation a matter of subjective satisfaction of the state. The only important thing for the law is that the state must form its opinion about inadequacy of representation on the basis of "some material" facts. This applies in the cases of promotion as well, the Supreme Court held in its latest ruling.
POLITICS IN RESERVATION CASE
The matter related to a September-2012 decision of the Uttarakhand government (then under the Congress party) to fill up all posts in public services in the state without providing reservations to Scheduled Castes and Scheduled Tribes.
The decision was challenged in the Uttarakhand High Court, which struck it down in April last year (the BJP had come to power by now in the state).
The Uttarakhand reservation case went to the Supreme Court, which has now upheld the state government decision of 2012.
On the political side, the Congress has lashed out at the BJP and the Modi government over the issue of dilution of reservation for SC/ST communities. The party raised the issue both inside and outside Parliament.
Congress leader Rahul Gandhi said it is in the DNA (genetic material) of the BJP and the RSS to try and end reservation for SC/ST communities. He said, "They (the RSS and BJP) wake up every morning and this (reservation) irritates them, except it is in our Constitution, and these rights are guaranteed by our Constitution."
The RSS has been calling for a review of the reservation policy for quite some time. Being the parent organisation of the BJP, its view is taken as the future policy of the current ruling party at the Centre.
In 2015, RSS chief Mohan Bhagwat had called for a relook at the reservation policy in the run-up to the Bihar Assembly election. This one statement, many believed, ruined the BJP's chances of winning the state election that the JDU-RJD-Congress combine won with nearly three-fourth seats in 243-member assembly.
SC/ST ACT CASE
In the second case, the Supreme Court has upheld the law that made its previous judgment ineffective. The SC/ST Prevention of Atrocities Act originally called for registering FIR against an accused named by an SC/ST person alleging harassment due to caste identity.
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In March 2018, the Supreme Court ruled that a "preliminary inquiry" should be held before lodging FIR under the SC/ST Act. This led to a huge uproar with Dalit outfits hitting the streets and calling a nationwide strike that saw violence.
The Modi government, under pressure in the face of being branded as anti-Dalit, introduced an amendment to the SC/ST Act restoring the original provisions of the law. This has angered the upper caste groups, which have claimed misuse of the SC/ST Act. The BJP is generally considered as a party of upper caste voters.
Now, the Supreme Court has upheld the constitutional validity of the SC/ST Amendment Act 2018. It said a court can grant anticipatory bail only in cases where a prima facie case is not made out.
Quota in jobs: Supreme Court’s decision is simply a reiteration of the provision of the Constitution
February 16, 2020, 11:02 pm IST Arghya Sengupta in TOI Edit Page | politics | ET
The Supreme Court judgment of February 7, declaring that there is no fundamental right of a member of the scheduled caste (SC) or scheduled tribe (ST) community to claim reservation benefits while being promoted in government service, has caused much political angst. Opposition parties have protested in Parliament and outside questioning GoI’s resolve to look after the welfare of persons of the SC/ST communities. GoI has deflected this charge by stating that this is a judgment of the Supreme Court, and there is little that it can do about it.
The debate is, at once, a misunderstanding, while also symptomatic of a felt unease in the manner in which quota politics has unravelled over the past few years.
The apex court’s judgment is very simply a reiteration of the provision of the Constitution. According to Article 16(4A) of the Constitution, any reservation of seats for SC/ST persons in promotion will not violate the fundamental tenet of equality.
This provision quite clearly does not actively require state governments or the central government to provide reservation.
Instead, it declares that should a government choose to reserve seats in promotion, such reservation will not be a violation of equality. As a result of the immunity provided, no one, particularly upper castes, can claim that preferential treatment for SC/ST persons treats people unequally, and is violative of the Constitution.
Govt should make data about marginalised communities’ representation public
In fact, the Supreme Court, in this judgment — and on various prior occasions — has gone further and said that such reservation actually promotes substantive equality. Recognising that there is no level-playing field to begin with, the court has said that providing reservations for SC/ST persons is not an exception to equality, but rather necessary to achieve equality.
Not set to order
There is good reason why this is so. In the Constituent Assembly, B R Ambedkar said in no uncertain terms that the reason for reservation in public employment is to offset inadequacy in representation. If representation of these backward classes becomes sufficient, there was an implicit assumption that the level-playing field would be restored and equality optimally achieved. Quotas would no longer be required.
This is why the framers of the Constitution were near unanimous that reservation was not mandatory.
Instead, it was an enabling provision for states to use, if indeed backward classes were under-represented.
Except for a solitary member of the constituent assembly, Harnam Singh, who asked that the government be directed to provide benefits to reserved classes, no other member wanted to tie the government down in this manner.
The Supreme Court has now simply restated this proposition. Even if a government finds inadequacy of representation — as the Uttarakhand government had done in this case in 2012 — the court cannot direct the government to provide reservation.
The government can provide it, only if it so chooses. To this extent, the Supreme Court judgment has been misunderstood. Whether such misunderstanding is deliberate or otherwise is anybody’s guess.
It is, however, an entirely different, but more significant, question as to why, despite finding evidence of under-representation of SC/ST persons in service, the Uttarakhand government chose not to provide reservation.
Was this actuated by bias?
Or were there other more effective means that were devised to ensure greater equality? This is, however, a political, not a constitutional, question. The current angst is, perhaps, better directed against the Uttarakhand government, whose previous intransigence in this regard, while being constitutionally kosher, is morally suspect.
That the angst is misdirected is demonstrative of the faultlines of quota politics today. On the one hand, with the central government extending quotas to economically backward sections except SCs/STs in 2019, the centrality of caste in any affirmative action policy has been brought squarely into question. On the other hand, the move reinforced the centrality of reservation of jobs at a time of economic scarcity as a powerful political sop.
The current protestations are a continuation of the fear that the Narendra Modi government will perpetuate quotas, while steadily reengineering their basis away from SCs/STs/other backward classes (OBCs), to non-caste factors. In this sense, it is a reaction to the ‘new normal’. Quota politics is no longer the sole prerogative of caste-based parties, but can be captured by mainstream political groupings by radically overturning its fundamental basis of social backwardness.
This goes to the heart of the matter — of how we, as a polity, understand equality in society. This is a political question all the way down.
It’s best that the Constitution and the Supreme Court are kept out of it.
DISCLAIMER : Views expressed above are the author's own.
"Reservations For Jobs, Promotions Not A Fundamental Right": Top Court
The Supreme Court's judgment overturned a 2012 ruling by the Uttarakhand High Court that directed the state to provide quotas to specified communities
All IndiaWritten by A Vaidyanathan, Edited by Chandrashekar SrinivasanUpdated: February 11, 2020 01:03 am IST
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The Supreme Court said there was no fundamental right allowing an individual to claim reservation
New Delhi:
Quotas and reservations for promotions for government jobs is not a fundamental right, the Supreme Court said in a potentially key judgment delivered on Friday. The top court said it could not compel states to provide quotas and states could not be forced to make such provisions without data showing imbalance in representation of certain communities in public service.
In a verdict delivered on appeals on reservations for SC/ST community members in promotions to Assistant Engineer (Civil) posts in the Public Works Department of the Uttarakhand government, the court said there was no "fundamental right" that allowed for such claims.
"There is no doubt the state government is not bound to make reservations. There is no fundamental right which inheres in an individual to claim reservation in promotions. No mandamus can be issued by the court directing state governments to provide reservations," a bench comprising Justices L Nageswara Rao and Hemant Gupta said on February 7.
The Supreme Court's judgment overturned a 2012 ruling by the Uttarakhand High Court that directed the state to provide quotas to specified communities.
At that time senior advocates Kapil Sibal, Colin Gonsalves and Dushyant Dave had argued the state had a duty to help SCs/STs under Articles 16(4) and 16(4-A) of the Constitution.
On Friday the top court pointed out that while these articles give power to make reservations, it did so only "if in the opinion of the state they are not adequately represented in the services of the state".
"It is settled law the state cannot be directed to provide reservations for appointment in public posts. Similarly, state is not bound to make reservation for SCs/STs in matters of promotions," the court said.
In saying reservation for appointment and promotion was a matter of discretion the court also cautioned that states had to justify decisions - to be taken on basis of quantifiable data - if those were to be challenged.
Lok Janshakti Party leader Chirag Paswan, who this week demanded a bill on reservation for women in legislatures, criticised the judgment, calling it "entirely against the concept of reservation" and urging the government to "restore reservation as provided under the Constitution of India".
The issue of reservations is a contentious one, with a petition regarding halting of benefits for well-off members from SC/ST communities - the "creamy layer" - pending in the Supreme Court.
In 2018 a five-judge Constitution Bench said the "creamy layer" could not get benefits of reservation in government jobs. In December last year the centre requested a seven-judge bench to review this.
Court cases related to reservation in India
From Wikipedia, the free encyclopedia
https://en.wikipedia.org/wiki/Court_cases_related_to_reservation_in_India
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The Indian judiciary has made some judgments related to reservations, and some judgments regarding reservations have been modified by the Indian parliament through constitutional amendments. Some of those judgments have been met with controversy by state and central governments. Some major judgments, along with their implementation status, are listed below.[1][2]
1990: Syndicate Bank SC & ST Employees Association (Through its General Secretary Sh K S Badalia) & Others Vs. Union of India & Others {1990 SCR(3) 713; 1990 SCC Supl. 350}: The Apex Court of the country held that the reservation is applicable and available in the selection method of promotions of Group-A/Class-1 Officers up to the highest (Scale VII: General Manager) level and the Govt. of India has committed a mistake in not giving the reservation to SC & ST Officers w.e.f. 1st January 1978, the date from which the policy of reservation in promotions was introduced/implemented in Public Sector Banks. This judgment was implemented only in Syndicate Bank up to April 1993. This judgment wasn't implemented in other banks/Departments due to the SC & ST Employees Associations/ organizations of some banks like SBI, UCO Bank, Allahabad Bank, etc. Instead of implementing this judgment in their banks, they filed Writ Petitions in the Supreme Court and High Courts where they failed. Mr. KS Badalia has tried to implement this in all banks, PSUs and Govt. departments, but he couldn't get any support from any association, organization, or political leader.
Year Judgement Implementation Details
1951 Court ruled that caste-based reservations as per Communal Award violate Article 15(1).
(State of Madras Vs. Smt. Champakam Dorairanjan AIR 1951 SC 226)
1st constitutional amendment (Art. 15 (4)) introduced to make judgment invalid.
1963 Court put 50% cap on reservations in
M R Balaji v Mysore AIR 1963 SC 649
Almost all states except Tamil Nadu (69%, Under 9th schedule) and Rajasthan (68% quota including 14% for forwarding castes, post-Gujjar violence 2008) have not exceeded 50% limit. Tamil Nadu exceeded limit in 1980. Andhra Pradesh tried to exceed the limit in 2005 which was again stalled by the high court.
1992 Supreme court in Indira Sawhney & Ors v. Union of India. AIR 1993 SC 477: 1992 Supp (3)SCC 217 upheld Implementation of separate reservation for other backward classes in central government jobs.[3][4] Judgement implemented
Ordered to exclude Creamy layer of other backward classes from enjoying reservation facilities. All states except Tamil Nadu implemented. Recent Reservation bill for providing reservations to other backward classes in educational institutions also has not excluded the Creamy layer in some states. (Still under the consideration of Standing committee).
Ordered to restrict reservations within a 50% limit. All states except Tamil Nadu followed.
Declared separate reservations for economically poor among forwarding castes as invalid.[citation needed] Judgement implemented[citation needed]
In General Manager, S. Rly. v. Rangachari AIR 1962 SC 36, State of Punjab v. Hiralal 1970(3) SCC 567, Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India (1981) 1 SCC 246 it was held that reservation of appointments or posts under Article 16(4)
included promotions. This was overruled in Indira Sawhney & Ors v. Union of India. AIR 1993 SC 477: 1992 Supp (3) SCC 217 and held that Reservations cannot be applied in promotions. Union of India Vs Varpal Singh AIR 1996 SC 448, Ajitsingh Januja & Ors Vs State of Punjab AIR 1996 SC 1189, Ajitsingh Januja & Ors Vs State of Punjab & Ors AIR 1999 SC 3471, M.G. Badappanavar Vs State of Karnataka 2001 (2) SCC 666.
Ashok Kumar Gupta: Vidyasagar Gupta Vs State of Uttar Pradesh. 1997 (5) SCC 201
77th Constitution amendment (Art 16(4 A) & (16 4B) introduced to make a judgement as invalid. M. Nagraj & Ors v. Union of India and Ors. AIR 2007 SC 71 held the amendments constitutional. 1. Art. 16(4)(A) and 16(4)(B) flow from Art. 16(4). Those constitutional amendments do not alter the structure of Art. 16(4). 2. Backwardness and inadequacy of representation are the controlling/compelling reasons for the state to provide reservations keeping in mind the overall efficiencies of state administration. 3. Government has to apply cadre strength as a unit in the operation of the roaster in order to ascertain whether a given class/group is adequately represented in the service. The roaster has to be post-specific with the inbuilt concept of replacement and not vacancy based. 4. If any authority thinks that for ensuring adequate representation of backward class or category, it is necessary to provide for direct recruitment therein, it shall be open to doing so. 5. Backlog vacancies to be treated as a distinct group and are excluded from the ceiling limit of 50%. 6. If a member from reserved category gets selected in the general category, his selection will not be counted against the quota limit provided to his class and reserved category candidates are entitled to compete for the general category post. 7. The reserved candidates are entitled to compete with the general candidates for promotion to the general post in their own right. On their selection, they are to be adjusted in the general post as per the roster and the reserved candidates should be adjusted in the points earmarked in the roster to the reserved candidates. 8. Each post gets marked for the particular category of the candidate to be appointed against it and any subsequent vacancy has to be filled by that category alone (replacement theory). R K Sabharwal Vs St of Punjab AIR 1995 SC 1371 : (1995) 2 SCC 745. The operation of a roster, for filling the cadre-strength, by itself ensures that the reservation remains within the 50% limit.
In Union of India Vs Varpal Singh AIR 1996 SC 448 and
Ajitsingh Januja & Ors Vs State of Punjab AIR 1996 SC 1189 it was held that a roster point promotees getting the benefit of accelerated promotion would not get consequential seniority and the seniority between the reserved category candidates and general candidates in promoted category shall be governed by their panel position. This was overruled in Jagdish Lal and others v. State of Haryana and Others (1997) 6 SCC 538 it held that the date of continuous officiation has to be taken into account and if so, the roster- point promotees were entitled to the benefit of continuous officiation. Ajitsingh Januja & Ors Vs State of Punjab & Ors AIR 1999 SC 3471 overruled Jagdish Lal M G Badappanvar Vs St of Karnataka 2001(2) SCC 666: AIR 2001 SC 260 held that roster promotions were meant only for the limited purpose of due representation of backward classes at various levels of service and therefore, such roster promotions did not confer consequential seniority to the roster point promotee.
By 85th Constitution amended Consequential Seniority was inserted in Art 16 (4)(A) to make the judgment invalid.
M. Nagraj & Ors v. Union of India and Ors. AIR 2007 SC 71 held the amendments constitutional. Jagdish Lal and others v. State of Haryana and Others (1997) 6 SCC 538 it held that the date of continuous officiation has to be taken into account and if so, the roster- point promotees were entitled to the benefit of continuous officiation.
S. Vinodkumar Vs. Union of India 1996 6 SCC 580 held that relaxation of qualifying marks and standard of evaluation in matters of reservation in promotion was not permissible By the Constitution (82nd) Amendment Act a proviso was inserted at the end of Art 335.
M. Nagraj & Ors v. Union of India and Ors. AIR 2007 SC 71 held the amendments constitutional.
2010 Suraj Bhan Meena Vs. The state of Rajasthan. Held that, in view of M. Nagraj & Ors v. Union of India and Ors. AIR 2007 SC 71, if the state wants to frame rules with regard to reservation in promotions and consequential seniority it has to satisfy itself with quantifiable data that is there is backwardness, inadequacy of representation in public employment and overall administrative inefficiency and unless such an exercise was undertaken by the state government the rules in promotions and consequential seniority cannot be introduced.
Reservation in promotion is dependent on the inadequacy of representation of members of SC, ST and backward classes and subject to the condition of ascertaining whether such reservation was at all required. As no exercise was undertaken to acquire quantifiable data regarding the inadequacy of representation. The Rajasthan High Court rightly quashed the notifications providing for consequential seniority and promotion to the members of SC and ST communities and the same does not call for any interference. S. Balakrishnan Vs. S. Chandrasekar (28/2/2005) The Government of Tamil Nadu Vs. Registration Department SC/ST (9/12/2005) The Madras High Court has held that reservation in promotion is available only to SC and ST and not to backward class (OBC) and most backward class (MBC) Sudam Shankar Baviskar Vs. Edu. Off. (Sec), Z.P. Jalgaon 2007 (2) MhLJ 802. Held that consequential seniority is not available to VJNT.
2010 UOI v/s. S. Kalugasalamoorthy
Held that when a person is selected on the basis of his own seniority, the scope of considering and counting him against reserved quota does not arise.
1994 Supreme court advised Tamil Nadu to follow 50% limit Tamil Nadu Reservations put under the 9th Schedule of the constitution.
I.R. Coelho (Dead) by LRS. Vs. State of T.N. 2007 (2) SCC 1: 2007 AIR(SC) 861 Held, Ninth Schedule law has already been upheld by the court, it would not be open to challenge such law again on the principles declared by this judgment. However, if a law held to be violative of any rights in Part III is subsequently incorporated in the Ninth Schedule after 24 April 1973, such a violation/infraction shall be open to challenge on the ground that it destroys or damages the basic structure as indicated in Article 21 read with Article 14, Article 19 and the principles underlying thereunder. Action was taken and the transactions finalized as a result of the impugned Acts shall not be open to challenge.
2005 In Unni Krishnan, J.P. & Ors. Vs. State of Andhra
Pradesh & Ors. (1993 (1) SCC 645), it was held that the right to establish educational institutions can neither be a trade or business nor can it be a profession within the meaning of Article 19(1)(g). This was overruled in T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481, P.A.Inamdar v. State of Maharashtra 2005 AIR(SC) 3226 The Supreme court ruled that reservations cannot be enforced on Private Unaided educational institutions.
93rd constitutional amendment introduced Art 15(5).
Ashoka Kumar Thakur vs. Union of India[5] 1. The Constitution (Ninety-Third Amendment) Act, 2005 does not violate the "basic structure" of the Constitution so far as it relates to the state maintained institutions and aided educational institutions. The question of whether the Constitution (Ninety-Third Amendment) Act, 2005 would be constitutionally valid or not so far as "private unaided" educational institutions are concerned, is left open to be decided in an appropriate case. 2."Creamy layer" principle is one of the parameters to identify backward classes. Therefore, principally, the "Creamy layer" principle cannot be applied to STs and SCs, as SCs and STs are separate classes by themselves. 3. Preferably there should be a review after ten years to take note of the change of circumstances. 4. Mere graduation (not technical graduation) or professional deemed to be educationally forward. 5. Principle of exclusion of Creamy layer applicable to OBC's. 6. The Central Government shall examine as to the desirability of fixing a cut off marks in respect of the candidates belonging to the Other Backward Classes (OBCs) to balance reservation with other societal interests and to maintain standards of excellence. This would ensure quality and merit would not suffer. If any seats remain vacant after adopting such norms they shall be filled up by candidates from general categories. 7. So far as the determination of backward classes is concerned, a Notification should be issued by the Union of India. This can be done only after the exclusion of the creamy layer for which necessary data must be obtained by the Central Government from the State Governments and Union Territories. Such Notification is open to challenge on the ground of wrongful exclusion or inclusion. Norms must be fixed keeping in view the peculiar features in different States and Union Territories. There has to be proper identification of Other Backward Classes (OBCs.). For identifying backward classes, the Commission set up pursuant to the directions of this Court in Indra Sawhney 1 has to work more effectively and not merely decide applications for inclusion or exclusion of castes. 8. The Parliament should fix a deadline by which time free and compulsory education will have reached every child. This must be done within six months, as the right to free and compulsory education is perhaps the most important of all the fundamental rights (Art.21 A). Without education, it becomes extremely difficult to exercise other fundamental rights. 9. If material is shown to the Central Government that the Institution deserves to be included in the Schedule (institutes which are excluded from reservations) of The Central Educational Institutions (Reservation in Admission) Act, 2006 (No. 5 of 2007), the Central Government must take an appropriate decision on the basis of materials placed and on examining the concerned issues as to whether Institution deserves to be included in the Schedule of the said act as provided in Sec 4 of the said act. 10. Held that the determination of SEBCs is done not solely based on caste and hence, the identification of SEBCs is not violative of Article 15(1) of the Constitution.
Relevant Cases
See Arts 12, 14, 15, 16, 19, 335 of the Constitution of India.
State of Madras Vs. Smt. Champakam Dorairanjan AIR 1951 SC 226
General Manager, S. Rly v. Rangachari AIR 1962 SC 36
M R Balaji v. State of Mysore AIR 1963 SC 649
T. Devadasan v Union AIR 1964 SC 179.
C. A. Rajendran v. Union of India AIR 1965 SC 507.
Chamaraja v Mysore AIR 1967 Mys 21
Barium Chemicals Ltd. Vs Company Law Board AIR 1967 SC 295
P. Rajendran Vs. State of Madras AIR 1968 SC 1012
Triloki Nath Vs. The state of Jammu and Kashmir AIR 1969 SC 1
State of Punjab vs. Hira Lal 1970(3) SCC 567
State of A.P. Vs U.S.V. Balram AIR 1972 SC 1375
Kesavanand Bharti v St of Kerala AIR 1973 SC 1461
State of Kerala Vs N. M. Thomas AIR 1976 SC 490 : (1976) 2 SCC 310
Jayasree Vs. State of Kerala AIR 1976 SC 2381
Minerva Mills Ltd Vs Union (1980) 3 SCC 625: AIR 1980 SC 1789
Ajay Hasia v Khalid Mujib AIR 1981 SC 487
Akhil Bharatiya Soshit Karamchari Sangh Vs Union (1981) 1 SCC 246
K. C. Vasant Kumar v. Karnataka AIR 1985 SC 1495
Comptroller & Auditor-General of India, Gian Prakash Vs K. S. Jaggannathan (1986) 2 SCC 679
Syndicate Bank SC & ST Employees Association (Through its General Secretary Sh K S Badalia) & Others Vs. Union of India & Others {1990 SCR(3) 713; 1990 SCC Supl. 350}:
Hindustan Zinc Ltd. Vs A. P. State Electricity Board (1991) 3SCC 299
Indira Sawhney & Ors v. Union of India AIR 1993 SC 477: 1992 Supp (3) SCC 217
Unni Krishnan v. State of A.P. and Ors. (1993 (1) SCC 645)
R K Sabharwal Vs St of Punjab AIR 1995 SC 1371 : (1995) 2 SCC 745
Union of India Vs Varpal Singh AIR 1996 SC 448
Ajitsingh Januja & Ors Vs State of Punjab AIR 1996 SC 1189
Ashok Kumar Gupta: Vidyasagar Gupta Vs State of Uttar Pradesh. 1997 (5) SCC 201
Jagdish Lal and others v. State of Haryana and Others (1997) 6 SCC 538
Chander Pal & Ors Vs State of Haryana (1997) 10 SCC 474
Post-Graduate Institute of Medical Education and Research, Chandigarh Vs. Faculty Association 1998 AIR(SC) 1767 : 1998 (4) SCC 1
Ajitsingh Januja & Ors Vs State of Punjab & Ors AIR 1999 SC 3471
Indira Sawhney Vs. Union of India. AIR 2000 SC 498
M G Badappanvar Vs St of Karnataka 2001(2) SCC 666: AIR 2001 SC 260
T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481
NTR University of Health Science Vijaywada v. G Babu Rajendra Prasad (2003) 5 SCC 350
Islamic Academy of Education & Anr. v. State of Karnataka & Ors. (2003) 6 SCC 697
Saurabh Chaudri & Ors. v. Union of India & Ors. (2003) 11 SCC 146
P.A. Inamdar v. State of Maharashtra 2005 AIR(SC) 3226
I.R. Coelho (Dead) by LRS. Vs. State of T.N. 2007 (2) SCC 1: 2007 AIR(SC) 861
M. Nagraj & Ors v. Union of India and Ors. AIR 2007 SC 71
Ashok Kumara Thakur Vs Union of India. 2008
K. Manorama Vs Union of India. (2010) 10 SCC 323.
Suraj Bhan Meena Vs. State of Rajasthan (2011) 1 SCC 467.
Reservation as right: on Supreme Court judgment
February 11, 2020 00:02 IST
Updated: February 10, 2020 23:30 IST
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Ensuring adequate representation to disadvantaged sections is a state obligation
It is quite understandable that a recent Supreme Court judgment, that there is no fundamental right to claim reservation in promotions, has caused some political alarm. The received wisdom in affirmative action jurisprudence is that a series of Constitution amendments and judgments have created a sound legal framework for reservation in public employment, subject to the fulfilment of certain constitutional requirements. And that it has solidified into an entitlement for the backward classes, including the SCs and STs. However, the latest judgment is a reminder that affirmative action programmes allowed in the Constitution flow from “enabling provisions” and are not rights as such. This legal position is not new. Major judgments — these include those by Constitution Benches — note that Article 16(4), on reservation in posts, is enabling in nature. In other words, the state is not bound to provide reservations, but if it does so, it must be in favour of sections that are backward and inadequately represented in the services based on quantifiable data. Thus, the Court is not wrong in setting aside an Uttarakhand High Court order directing data collection on the adequacy or inadequacy of representation of SC/ST candidates in the State’s services. Its reasoning is that once there is a decision not to extend reservation — in this case, in promotions — to the section, the question whether its representation in the services is inadequate is irrelevant.
The root of the current issue lies in the then Congress government’s decision to give up SC/ST quotas in promotions in Uttarakhand. The present BJP regime also shares responsibility as it argued in the Court that there is neither a basic right to reservations nor a duty by the State government to provide it. The idea that reservation is not a right may be in consonance with the Constitution allowing it as an option, but a larger question looms: Is there no government obligation to continue with affirmative action if the social situation that keeps some sections backward and at the receiving end of discrimination persists? Reservation is no more seen by the Supreme Court as an exception to the equality rule; rather, it is a facet of equality. The terms “proportionate equality” and “substantive equality” have been used to show that the equality norm acquires completion only when the marginalised are given a legal leg-up. Some may even read into this an inescapable state obligation to extend reservation to those who need it, lest its absence render the entire system unequal. For instance, if no quotas are implemented and no study on backwardness and extent of representation is done, it may result in a perceptible imbalance in social representation in public services. Will the courts still say a direction cannot be given to gather data and provide quotas to those with inadequate representation?
Supreme Court on reservation: Opening Pandora’s box
The recent Supreme Court ruling that reservations are not a fundamental right gives rise to certain questions
Supreme Court of India (File photo)
Supreme Court of India (File photo)
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Meera Velayudhan
Published: 15 Feb 2020, 11:00 PM
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The Supreme Court ruled recently that “there is no fundamental right which inheres in an individual to claim reservation in promotion”, and that ‘no mandamus can be issued by court directing state government to provide reservations.’
The verdict gives rise to certain questions. Have reservations been read and interpreted as part of protections and in the spirit guaranteed in Articles 14,15 and 16 (4) which specifically deal with to right to equality of opportunity in employment? Secondly, how have entitlements as fundamental rights and Directive Principles, over the years, been interpreted juridically? Are distinctions being made between fundamental rights as justiciable and directive principles as non-justiciable? Do the Directive Principles not impose an obligation on the state to realise the entitlements of the citizens — thus giving, as Babasaheb Ambedkar held — the Constitution a transformative potential? Are fundamental rights discretionary, as this Supreme Court verdict suggests, and hence the state has no obligations?
Underlying this verdict and also carrying forward ideas of “merit” and ‘efficiency”, is the social debate going on for decades and finding interpretations in varied juridical pronouncements (for example as early as MR Balaji and others vs State of Mysore, 1963). It pitted individual mobility versus class entitlements and the need of the state to identity ‘legitimate claimants’. The verdict extended to say that there was no justiciable rights or constitutional duty to make reservations, thereby reducing substantial equality to formal equality, all of which go against the spirit of the Constitution. The debates on reservations in India have too long carried the presumption that reserved categories lack ‘merit’. Also, as Kannabiran (2010) held, reservations have been reduced in constitutional interpretation from a philosophical premise to one of quantification.
A five- judge Constitution Bench in 2006 in the M Nagraj case held that states were bound to provide quantifiable data on backwardness of SCs, STs, facts on inadequate representation in government jobs and overall administrative efficiency before providing quota in promotions to SC/ST communities. Various state governments had sought a reconsideration of this verdict by a larger bench as it placed conditions which were unnecessary and overlooked stigma of caste and presumed backwardness.
One of those who opposed quota in reservations in the hearings argued that once an employee joins government service, the presumption of backwardness “vanishes”. And that such quota can be continued for class IV and III services but not for higher services.
In September 2018, the Supreme Court turned down an appeal by the Centre to reconsider its earlier verdict that had rejected the idea of reservations for SC/STs in job promotions. It upheld its 2006 order that said that it was not mandatory for government to give reservations in promotions in public sector jobs. This order also stated that states need not collect quantifiable data on backwardness od SC/STs for quota in job promotions.
There were no comments on the 2006 verdict on adequacy of representation of SC/STs in promotions or on administrative efficiency. The Supreme court had, following the idea of ‘creamy layer’ used for Other Backward Classes (OBCs), asked why it could not be made applicable to deny quota in promotion to ‘affluent’ among SC/ST communities. There was an underlying assumption that SC/ST communities are not entitled to social mobility and that social mobility meant that discriminatory attitudes did not persist.
In early 2019, before the parliamentary elections, the Central government decided to legislate 10 per cent reservation in higher education and government employment, sensing the need for upper caste votes — its traditional support base — despite the Supreme Court having held that the Constitution does not permit over 50 per cent reservations and a constitutional amendment needed to be enacted to bypass the Constitution and bring in ‘economic weakness’ as an eligibility criteria. The criteria introduced and passed in Parliament would in effect cover almost all Indians! That caste discrimination and marginalisation can be eliminated by a single policy act, was flawed thinking. The reservation principle was very much linked with full citizenship.
In April 2, 2018, a Bharat bandh called by less known Dalit organisations against the dilution of the stringent provisions of the SC, ST Prevention of Atrocities Act, 1989, evoked wide response from Dalit communities and India witnessed an unprecedented peaceful mass protest, with a few exception of clashes with upper castes, which was noted by political parties. There was and remains an apprehension that constitutional rights are being eroded and that reservation itself could be removed.
Over and above this, the economic policies, privatisation, contract system, and weakening of public education system were leading to newer vulnerabilities among Dalits and tribal communities. The Dalit upsurge witnessed in recent years was also the result of years of mobilisation on issues ranging from land, violence including sexual violence, forced migration, untouchability, manual scavenging, etc.
The flogging incident in Una (Gujarat) and other atrocities on Dalits have energised varied Dalit sub-castes and Dalit organisations to unite. The youth and students in particular mobilised around the Rohit Vemula issue and broader alliances were and are being forged.
What have been considered as ‘sectional’ issues are more and more leading to wider solidarities on citizenship and the challenges to constitutional rights and principles. Responses to varied legal verdicts, including the recent one on SC/ST promotions in jobs, will no doubt be inter-sectional in approach, given the present nature of protests witnessed in varied parts of India on citizenship.
(The writer is a Kochi-based policy analyst)
A Supreme Court order mandating that states are not legally bound to grant reservation in public services has reignited a longstanding political battle. Here's a look at the turn of events following a recent Supreme Court order on reservation
twitter-logo BusinessToday.In New Delhi Last Updated: February 10, 2020 | 18:25 IST
Supreme Court order on reservation: All you need to know
Supreme Court of India
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It was a clamorous day at Lok Sabha on Monday as opposition parties targeted the government over recent Supreme Court judgement which rules that states are not legally bound to provide reservation to Scheduled Castes and Scheduled Tribes in government jobs. In its decision last week on Friday, the top court also stated that individuals do not have a fundamental right to claim reservation in promotions.
The ruling came against an Uttarakhand High Court order. The Supreme Court order irked the opposition parties who demanded discussion on the judgement in both Houses of the Parliament. While the Centre has denied any role in the matter, the opposition has called the Modi government opposed to reservation to backward sections.
Here's a look at what the Supreme Court order says, does the Constitution allow it, and who's saying what:
What did the Supreme Court say on reservation?
A Supreme Court bench of justices L Nageswara Rao and Hemant Gupta ruled that states are not bound to make reservations, nor is reservation in promotions a fundamental right. The top court said that it cannot order state governments to provide reservations.
"In view of the law laid down by this court, there is no doubt that the state government is not bound to make reservations. There is no fundamental right which inheres in an individual to claim reservation in promotions. No mandamus can be issued by the court directing the state government to provide reservations," the bench said in its order.
The state governments can grant reservation to scheduled castes and scheduled tribes at their own discretion, but will have to collect quantifiable data which shows their inadequate representation in public services. The Supreme Court has said that states can grant reservation to certain classes, but "there must be some material on the basis of which the opinion is formed".
The Supreme Court decision came against pleas regarding Uttarakhand government's September 5, 2012 decision to fill up all posts in public services in the state without providing reservations to Scheduled Castes and Scheduled Tribes. The government's decision was challenged in the Uttarakhand High Court, which struck it down
What does the constitution say?
The Supreme Court referred to Article 16 and its clauses 4 and 4A while delivering its judgement in the matter. Article 16 in the Constitution of India refers to equality of opportunity in government jobs.
Article 16 (4) states: "Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State."
Article 16 (4A), which was introduced in 1995, states: "Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State."
To summarise, the Constitution of India grants state government the power to reserve vacancies for backward sections, and even grant reservation in matters of promotion for posts under it. This can be done if the state believes that the reserved categories are inadequately represented in public services under it.
What is Modi government's stand?
While the opposition is holding the Centre accountable for the Supreme Court order on reservation, the union government has said that it was not a party in this legal battle. Social Justice and Empowerment Minister Thawar Chand Gehlot told Lok Sabha that the Centre was also not asked to file an affidavit on the issue.
Gehlot also pointed out that the Supreme Court order refers to a Uttarakhand government notification from 2012, when Congress was in power in the state. The Social Justice Minister said that the Centre is studying the subject and will take an appropriate decision.
Meanwhile, Rajnath Singh, Defence Minister and Deputy Leader of House, said in Lok Sabha that the opposition is politicising a sensitive issue.
What is the opposition saying?
Following the Supreme Court order, Congress leader Rahul Gandhi said that the BJP and RSS are trying to erase reservations. "The ideology of the RSS and the BJP is against reservation. The RSS and the BJP cannot stand the idea that Dalits, tribals and OBCs have reservations. They (the RSS and BJP) wake up every morning and this (reservation) irritates them. Except it is in our Constitution, and these rights are guaranteed by our Constitution," Gandhi said while talking to reporters outside the Parliament.
Former Finance Minister P Chidambaram said the BJP government cannot distance itself from the Supreme Court's decision not to make reservations compulsory. "The BJP government of Uttarakhand put forward the argument that was accepted by the Court. BJP must own up to the judgement and tell us if it will reject the declaration of law," Chidambaram said in a series of tweets.
If the BJP does not agree with the decision, let it say so and implement corrective measures, Chidambaram said.
SC quota ruling is nothing new — reservation in jobs was never a fundamental right
SC ruling that reservations in jobs, promotions are not a fundamental right reiterates a long-held reading of constitutional provisions on quota.
Apoorva Mandhani 12 February, 2020 12:01 pm IST
The Supreme Court of India | Photo: Manisha Mondal | ThePrint
The Supreme Court of India | Photo: Manisha Mondal | ThePrint
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New Delhi: The Supreme Court Friday ruled that there is no fundamental right to reservations in appointments and promotions under articles 16(4) and 16(4A) of the Constitution.
The apex court ruled that it was the discretion of the governments, either at the state or central level, to grant reservation in promotions. The ruling has since evoked a sharp response from various stakeholders and political parties.
Congress leader Rahul Gandhi accused the BJP and the RSS of having always been against reservations to weaker sections of society. He added that the Congress would not let quotas in jobs and education come to an end.
The CPI claimed that Dalits, tribals and backward classes are “disappointed and agitated” with the Supreme Court ruling.
However, the fact that reservation cannot be claimed as a fundamental right is a settled position under the law, and has been pointed out by several judgments in the past.
The Supreme Court’s judgment Friday relied on these precedents to rule that since it is not a fundamental right, the government is not obligated to collect quantifiable data showing a community is inadequately represented in public services — as required by Article 16(4A) — if it has already decided not to grant reservations in promotions.
ThePrint explains the precedents and chronicles the dispute that culminated in the Supreme Court’s latest judgment.
Also read: Collegium system needs reconsideration, says former Supreme Court judge AK Sikri
What does the Constitution say on reservations?
Article 14 of the Constitution guarantees equality before law and equal protection of laws to everyone. Similarly, Article 16(1) and 16(2) assure citizens equality of opportunity in employment or appointment to any government office.
Article 15(1) generally prohibits any discrimination against any citizen on the grounds of religion, caste, sex or place of birth.
Additionally, Article 29(2) bars discrimination against any citizen with regard to admission to educational institutions maintained by the government or receiving aid out of government funds on grounds of religion, race, caste etc.
However, Articles 15(4) and 16(4) state that these equality provisions do not prevent the government from making special provisions in matters of admission to educational institutions or jobs in favour of backward classes, particularly the Scheduled Castes (SCs) and the Scheduled Tribes (STs).
Article 16(4A) allows reservations to SCs and STs in promotions, as long as the government believes that they are not adequately represented in government services.
What do the precedents say?
There are several major Supreme Court judgments that have, in the past, ruled that Articles 15(4) and 16(4) do not provide a fundamental right per se.
A five-judge apex court bench, as early as 1962 in the M.R. Balaji v. State of Mysore had ruled that Article 15(4) is an “enabling provision”, meaning that “it does not impose an obligation, but merely leaves it to the discretion of the appropriate government to take suitable action, if necessary”.
The court was hearing a challenge to an order passed by the erstwhile state of Mysore reserving 68 per cent of seats in engineering and medical colleges for educationally and socially backward classes and SCs and STs.
Five years later, in 1967, another five-judge bench in C.A. Rajendran v. Union of India reiterated this position, holding that the government is under no constitutional duty to provide reservations for SCs and STs, either at the initial stage of recruitment or at the stage of promotion.
Article 16(4), it said, does not confer any right on the citizens and is an enabling provision giving discretionary power to the government to make reservations.
The position went on to be reiterated in several other decisions, including the nine-judge bench ruling in Indra Sawhney v. Union of India (1992) and the five-judge bench decision in M Nagaraj v. Union of India (2006).
Also read: We know the number of cows & pigs in India, but not those of OBCs & Brahmins
How did the case reach the Supreme Court?
The controversy in the current case pertained to reservations to SCs and STs in promotions for the post of assistant engineer (Civil) in the Uttarakhand government’s Public Works Department.
The reservation was initially provided for under the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994. Section 3(7) of this Act stated that the government orders providing for reservations in promotions, which were in force in the time of commencement of the Act in 1994 would continue to operate, until modified or revoked.
After the formation of Uttarakhand in 2001, the Act was made applicable to the new state, with a few modifications. Section 3(7) was, however, subsequently held unconstitutional by the Uttarakhand High Court in 2011.
The state government then constituted a committee for collection of quantifiable data on the backwardness of the reserved communities in Uttarakhand and the inadequacy of their representation in public posts, to satisfy the condition under Article 16 (4A).
In 2012, the then state government decided that all posts in public services will be filled up without any reservations for SCs and STs. All government orders providing for such reservations were also scrapped. This was once again challenged in the high court.
The Uttarakhand High Court then struck down the State’s 2012 decision in April last year. A review petition against this order was filed in the high court, which did acknowledge that Article 16 (4A) is an enabling provision.
But it directed the state government to collect quantifiable data regarding inadequacy of representation of SCs and STs in state services, and then take a decision on providing reservations in promotions. This decision was challenged in the Supreme Court.
What SC ruled?
The apex court has now re-iterated that Articles 16(4) and 16(4A) do not confer any fundamental rights to claim reservations in promotion. It is for the state government to decide whether reservations are required for appointment and promotions to public posts, it said.
“It is settled law that the State Government cannot be directed to provide reservations for appointment in public posts. Similarly, the State is not bound to make reservations for Scheduled Castes and Scheduled Tribes in matters of promotions,” it observed.
However, if the state government does want to exercise this discretion and provide reservations, it would have to first collect quantifiable data showing inadequacy of representation of that class in public services.
The court then opined that the high court should not have struck down the state government’s 2012 decision to not provide reservation in promotions.
It further ruled that since Article 16(4) and 16 (4A) do not provide a fundamental right, courts cannot issue a direction to the state government to provide reservations. It clarified that since the state government had decided not to provide reservations, it did not have to collect quantifiable data at all.
With these observations, it set aside the high court order.
Reservation in jobs to FIR in SC/ST Act: Caste-based rights get realigned in Supreme Court
With two significant rulings on Monday, the Supreme Court has put the Narendra Modi government in a fix in the first case while given respite in the second.
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Prabhash K Dutta
New Delhi
February 10, 2020
UPDATED: February 10, 2020 17:57 IST
The Supreme Court has made the reservation optional in a sense. (Photo: PTI)
Two significant rulings have come from the Supreme Court which may give fresh impetus to caste-based politics with job market staying sluggish and caste becoming ever more dominant a pitch in political narratives.
First, the Supreme Court ruled that the state governments are not bound to fill vacancies in accordance with the rules of reservation for the Scheduled Castes, Scheduled Tribes and the Other Backward Classes (OBCs).
Second, the Supreme Court has upheld an amendment that the Narendra Modi government had brought in 2018 to overturn its judgment in case relating to the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
Both matters are politically sensitive and the Supreme Court has put the Modi government in a fix in the first case while given respite in the second.
SUPREME COURT ON RESERVATION
In the case of reservation, the Supreme Court refused to issue direction to the Uttarakhand state government to provide reservation to SC/ST candidates in fulfilling vacancies holding that quota in jobs is not a fundamental right. The Supreme Court ruled, "No mandamus can be issued by the court directing the state government to provide reservations."
The Supreme Court ruled, "It is settled law that the state government cannot be directed to provide reservations for appointment in public posts. Similarly, the state is not bound to make reservation for Scheduled Castes and Scheduled Tribes in matters of promotions."
WHY IT MATTERS?
The Supreme Court has made the reservation optional in a sense. "If they (states) wish to exercise their discretion and make such provision, the state has to collect quantifiable data showing inadequacy of representation of that class in public services," the Supreme Court said.
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This may be interpreted as departure from the understanding with regard to reservation in jobs. The earlier ruling of the Supreme Court fixing the limit of reservation at 50 per cent of the total vacancies has been interpreted as a mandatory rule for the government to provide reservation for SC/ST and OBC candidates in all fresh appointments.
But in the latest judgment, the Supreme Court has interpreted Article 16 to say, "It is for the state government to decide whether reservations are required in the matter of appointment and promotions to public posts."
The Supreme Court held that the Constitution empowers the state to provide for reservation of seats in favour of the SC/ST candidates in matters of appointment and promotion "if in the opinion of state they are not adequately represented in the services of the state".
The court also held inadequacy of representation a matter of subjective satisfaction of the state. The only important thing for the law is that the state must form its opinion about inadequacy of representation on the basis of "some material" facts. This applies in the cases of promotion as well, the Supreme Court held in its latest ruling.
POLITICS IN RESERVATION CASE
The matter related to a September-2012 decision of the Uttarakhand government (then under the Congress party) to fill up all posts in public services in the state without providing reservations to Scheduled Castes and Scheduled Tribes.
The decision was challenged in the Uttarakhand High Court, which struck it down in April last year (the BJP had come to power by now in the state).
The Uttarakhand reservation case went to the Supreme Court, which has now upheld the state government decision of 2012.
On the political side, the Congress has lashed out at the BJP and the Modi government over the issue of dilution of reservation for SC/ST communities. The party raised the issue both inside and outside Parliament.
Congress leader Rahul Gandhi said it is in the DNA (genetic material) of the BJP and the RSS to try and end reservation for SC/ST communities. He said, "They (the RSS and BJP) wake up every morning and this (reservation) irritates them, except it is in our Constitution, and these rights are guaranteed by our Constitution."
The RSS has been calling for a review of the reservation policy for quite some time. Being the parent organisation of the BJP, its view is taken as the future policy of the current ruling party at the Centre.
In 2015, RSS chief Mohan Bhagwat had called for a relook at the reservation policy in the run-up to the Bihar Assembly election. This one statement, many believed, ruined the BJP's chances of winning the state election that the JDU-RJD-Congress combine won with nearly three-fourth seats in 243-member assembly.
SC/ST ACT CASE
In the second case, the Supreme Court has upheld the law that made its previous judgment ineffective. The SC/ST Prevention of Atrocities Act originally called for registering FIR against an accused named by an SC/ST person alleging harassment due to caste identity.
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In March 2018, the Supreme Court ruled that a "preliminary inquiry" should be held before lodging FIR under the SC/ST Act. This led to a huge uproar with Dalit outfits hitting the streets and calling a nationwide strike that saw violence.
The Modi government, under pressure in the face of being branded as anti-Dalit, introduced an amendment to the SC/ST Act restoring the original provisions of the law. This has angered the upper caste groups, which have claimed misuse of the SC/ST Act. The BJP is generally considered as a party of upper caste voters.
Now, the Supreme Court has upheld the constitutional validity of the SC/ST Amendment Act 2018. It said a court can grant anticipatory bail only in cases where a prima facie case is not made out.
Quota in jobs: Supreme Court’s decision is simply a reiteration of the provision of the Constitution
February 16, 2020, 11:02 pm IST Arghya Sengupta in TOI Edit Page | politics | ET
The Supreme Court judgment of February 7, declaring that there is no fundamental right of a member of the scheduled caste (SC) or scheduled tribe (ST) community to claim reservation benefits while being promoted in government service, has caused much political angst. Opposition parties have protested in Parliament and outside questioning GoI’s resolve to look after the welfare of persons of the SC/ST communities. GoI has deflected this charge by stating that this is a judgment of the Supreme Court, and there is little that it can do about it.
The debate is, at once, a misunderstanding, while also symptomatic of a felt unease in the manner in which quota politics has unravelled over the past few years.
The apex court’s judgment is very simply a reiteration of the provision of the Constitution. According to Article 16(4A) of the Constitution, any reservation of seats for SC/ST persons in promotion will not violate the fundamental tenet of equality.
This provision quite clearly does not actively require state governments or the central government to provide reservation.
Instead, it declares that should a government choose to reserve seats in promotion, such reservation will not be a violation of equality. As a result of the immunity provided, no one, particularly upper castes, can claim that preferential treatment for SC/ST persons treats people unequally, and is violative of the Constitution.
Govt should make data about marginalised communities’ representation public
In fact, the Supreme Court, in this judgment — and on various prior occasions — has gone further and said that such reservation actually promotes substantive equality. Recognising that there is no level-playing field to begin with, the court has said that providing reservations for SC/ST persons is not an exception to equality, but rather necessary to achieve equality.
Not set to order
There is good reason why this is so. In the Constituent Assembly, B R Ambedkar said in no uncertain terms that the reason for reservation in public employment is to offset inadequacy in representation. If representation of these backward classes becomes sufficient, there was an implicit assumption that the level-playing field would be restored and equality optimally achieved. Quotas would no longer be required.
This is why the framers of the Constitution were near unanimous that reservation was not mandatory.
Instead, it was an enabling provision for states to use, if indeed backward classes were under-represented.
Except for a solitary member of the constituent assembly, Harnam Singh, who asked that the government be directed to provide benefits to reserved classes, no other member wanted to tie the government down in this manner.
The Supreme Court has now simply restated this proposition. Even if a government finds inadequacy of representation — as the Uttarakhand government had done in this case in 2012 — the court cannot direct the government to provide reservation.
The government can provide it, only if it so chooses. To this extent, the Supreme Court judgment has been misunderstood. Whether such misunderstanding is deliberate or otherwise is anybody’s guess.
It is, however, an entirely different, but more significant, question as to why, despite finding evidence of under-representation of SC/ST persons in service, the Uttarakhand government chose not to provide reservation.
Was this actuated by bias?
Or were there other more effective means that were devised to ensure greater equality? This is, however, a political, not a constitutional, question. The current angst is, perhaps, better directed against the Uttarakhand government, whose previous intransigence in this regard, while being constitutionally kosher, is morally suspect.
That the angst is misdirected is demonstrative of the faultlines of quota politics today. On the one hand, with the central government extending quotas to economically backward sections except SCs/STs in 2019, the centrality of caste in any affirmative action policy has been brought squarely into question. On the other hand, the move reinforced the centrality of reservation of jobs at a time of economic scarcity as a powerful political sop.
The current protestations are a continuation of the fear that the Narendra Modi government will perpetuate quotas, while steadily reengineering their basis away from SCs/STs/other backward classes (OBCs), to non-caste factors. In this sense, it is a reaction to the ‘new normal’. Quota politics is no longer the sole prerogative of caste-based parties, but can be captured by mainstream political groupings by radically overturning its fundamental basis of social backwardness.
This goes to the heart of the matter — of how we, as a polity, understand equality in society. This is a political question all the way down.
It’s best that the Constitution and the Supreme Court are kept out of it.
DISCLAIMER : Views expressed above are the author's own.
"Reservations For Jobs, Promotions Not A Fundamental Right": Top Court
The Supreme Court's judgment overturned a 2012 ruling by the Uttarakhand High Court that directed the state to provide quotas to specified communities
All IndiaWritten by A Vaidyanathan, Edited by Chandrashekar SrinivasanUpdated: February 11, 2020 01:03 am IST
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The Supreme Court said there was no fundamental right allowing an individual to claim reservation
New Delhi:
Quotas and reservations for promotions for government jobs is not a fundamental right, the Supreme Court said in a potentially key judgment delivered on Friday. The top court said it could not compel states to provide quotas and states could not be forced to make such provisions without data showing imbalance in representation of certain communities in public service.
In a verdict delivered on appeals on reservations for SC/ST community members in promotions to Assistant Engineer (Civil) posts in the Public Works Department of the Uttarakhand government, the court said there was no "fundamental right" that allowed for such claims.
"There is no doubt the state government is not bound to make reservations. There is no fundamental right which inheres in an individual to claim reservation in promotions. No mandamus can be issued by the court directing state governments to provide reservations," a bench comprising Justices L Nageswara Rao and Hemant Gupta said on February 7.
The Supreme Court's judgment overturned a 2012 ruling by the Uttarakhand High Court that directed the state to provide quotas to specified communities.
At that time senior advocates Kapil Sibal, Colin Gonsalves and Dushyant Dave had argued the state had a duty to help SCs/STs under Articles 16(4) and 16(4-A) of the Constitution.
On Friday the top court pointed out that while these articles give power to make reservations, it did so only "if in the opinion of the state they are not adequately represented in the services of the state".
"It is settled law the state cannot be directed to provide reservations for appointment in public posts. Similarly, state is not bound to make reservation for SCs/STs in matters of promotions," the court said.
In saying reservation for appointment and promotion was a matter of discretion the court also cautioned that states had to justify decisions - to be taken on basis of quantifiable data - if those were to be challenged.
Lok Janshakti Party leader Chirag Paswan, who this week demanded a bill on reservation for women in legislatures, criticised the judgment, calling it "entirely against the concept of reservation" and urging the government to "restore reservation as provided under the Constitution of India".
The issue of reservations is a contentious one, with a petition regarding halting of benefits for well-off members from SC/ST communities - the "creamy layer" - pending in the Supreme Court.
In 2018 a five-judge Constitution Bench said the "creamy layer" could not get benefits of reservation in government jobs. In December last year the centre requested a seven-judge bench to review this.
Court cases related to reservation in India
From Wikipedia, the free encyclopedia
https://en.wikipedia.org/wiki/Court_cases_related_to_reservation_in_India
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The Indian judiciary has made some judgments related to reservations, and some judgments regarding reservations have been modified by the Indian parliament through constitutional amendments. Some of those judgments have been met with controversy by state and central governments. Some major judgments, along with their implementation status, are listed below.[1][2]
1990: Syndicate Bank SC & ST Employees Association (Through its General Secretary Sh K S Badalia) & Others Vs. Union of India & Others {1990 SCR(3) 713; 1990 SCC Supl. 350}: The Apex Court of the country held that the reservation is applicable and available in the selection method of promotions of Group-A/Class-1 Officers up to the highest (Scale VII: General Manager) level and the Govt. of India has committed a mistake in not giving the reservation to SC & ST Officers w.e.f. 1st January 1978, the date from which the policy of reservation in promotions was introduced/implemented in Public Sector Banks. This judgment was implemented only in Syndicate Bank up to April 1993. This judgment wasn't implemented in other banks/Departments due to the SC & ST Employees Associations/ organizations of some banks like SBI, UCO Bank, Allahabad Bank, etc. Instead of implementing this judgment in their banks, they filed Writ Petitions in the Supreme Court and High Courts where they failed. Mr. KS Badalia has tried to implement this in all banks, PSUs and Govt. departments, but he couldn't get any support from any association, organization, or political leader.
Year Judgement Implementation Details
1951 Court ruled that caste-based reservations as per Communal Award violate Article 15(1).
(State of Madras Vs. Smt. Champakam Dorairanjan AIR 1951 SC 226)
1st constitutional amendment (Art. 15 (4)) introduced to make judgment invalid.
1963 Court put 50% cap on reservations in
M R Balaji v Mysore AIR 1963 SC 649
Almost all states except Tamil Nadu (69%, Under 9th schedule) and Rajasthan (68% quota including 14% for forwarding castes, post-Gujjar violence 2008) have not exceeded 50% limit. Tamil Nadu exceeded limit in 1980. Andhra Pradesh tried to exceed the limit in 2005 which was again stalled by the high court.
1992 Supreme court in Indira Sawhney & Ors v. Union of India. AIR 1993 SC 477: 1992 Supp (3)SCC 217 upheld Implementation of separate reservation for other backward classes in central government jobs.[3][4] Judgement implemented
Ordered to exclude Creamy layer of other backward classes from enjoying reservation facilities. All states except Tamil Nadu implemented. Recent Reservation bill for providing reservations to other backward classes in educational institutions also has not excluded the Creamy layer in some states. (Still under the consideration of Standing committee).
Ordered to restrict reservations within a 50% limit. All states except Tamil Nadu followed.
Declared separate reservations for economically poor among forwarding castes as invalid.[citation needed] Judgement implemented[citation needed]
In General Manager, S. Rly. v. Rangachari AIR 1962 SC 36, State of Punjab v. Hiralal 1970(3) SCC 567, Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India (1981) 1 SCC 246 it was held that reservation of appointments or posts under Article 16(4)
included promotions. This was overruled in Indira Sawhney & Ors v. Union of India. AIR 1993 SC 477: 1992 Supp (3) SCC 217 and held that Reservations cannot be applied in promotions. Union of India Vs Varpal Singh AIR 1996 SC 448, Ajitsingh Januja & Ors Vs State of Punjab AIR 1996 SC 1189, Ajitsingh Januja & Ors Vs State of Punjab & Ors AIR 1999 SC 3471, M.G. Badappanavar Vs State of Karnataka 2001 (2) SCC 666.
Ashok Kumar Gupta: Vidyasagar Gupta Vs State of Uttar Pradesh. 1997 (5) SCC 201
77th Constitution amendment (Art 16(4 A) & (16 4B) introduced to make a judgement as invalid. M. Nagraj & Ors v. Union of India and Ors. AIR 2007 SC 71 held the amendments constitutional. 1. Art. 16(4)(A) and 16(4)(B) flow from Art. 16(4). Those constitutional amendments do not alter the structure of Art. 16(4). 2. Backwardness and inadequacy of representation are the controlling/compelling reasons for the state to provide reservations keeping in mind the overall efficiencies of state administration. 3. Government has to apply cadre strength as a unit in the operation of the roaster in order to ascertain whether a given class/group is adequately represented in the service. The roaster has to be post-specific with the inbuilt concept of replacement and not vacancy based. 4. If any authority thinks that for ensuring adequate representation of backward class or category, it is necessary to provide for direct recruitment therein, it shall be open to doing so. 5. Backlog vacancies to be treated as a distinct group and are excluded from the ceiling limit of 50%. 6. If a member from reserved category gets selected in the general category, his selection will not be counted against the quota limit provided to his class and reserved category candidates are entitled to compete for the general category post. 7. The reserved candidates are entitled to compete with the general candidates for promotion to the general post in their own right. On their selection, they are to be adjusted in the general post as per the roster and the reserved candidates should be adjusted in the points earmarked in the roster to the reserved candidates. 8. Each post gets marked for the particular category of the candidate to be appointed against it and any subsequent vacancy has to be filled by that category alone (replacement theory). R K Sabharwal Vs St of Punjab AIR 1995 SC 1371 : (1995) 2 SCC 745. The operation of a roster, for filling the cadre-strength, by itself ensures that the reservation remains within the 50% limit.
In Union of India Vs Varpal Singh AIR 1996 SC 448 and
Ajitsingh Januja & Ors Vs State of Punjab AIR 1996 SC 1189 it was held that a roster point promotees getting the benefit of accelerated promotion would not get consequential seniority and the seniority between the reserved category candidates and general candidates in promoted category shall be governed by their panel position. This was overruled in Jagdish Lal and others v. State of Haryana and Others (1997) 6 SCC 538 it held that the date of continuous officiation has to be taken into account and if so, the roster- point promotees were entitled to the benefit of continuous officiation. Ajitsingh Januja & Ors Vs State of Punjab & Ors AIR 1999 SC 3471 overruled Jagdish Lal M G Badappanvar Vs St of Karnataka 2001(2) SCC 666: AIR 2001 SC 260 held that roster promotions were meant only for the limited purpose of due representation of backward classes at various levels of service and therefore, such roster promotions did not confer consequential seniority to the roster point promotee.
By 85th Constitution amended Consequential Seniority was inserted in Art 16 (4)(A) to make the judgment invalid.
M. Nagraj & Ors v. Union of India and Ors. AIR 2007 SC 71 held the amendments constitutional. Jagdish Lal and others v. State of Haryana and Others (1997) 6 SCC 538 it held that the date of continuous officiation has to be taken into account and if so, the roster- point promotees were entitled to the benefit of continuous officiation.
S. Vinodkumar Vs. Union of India 1996 6 SCC 580 held that relaxation of qualifying marks and standard of evaluation in matters of reservation in promotion was not permissible By the Constitution (82nd) Amendment Act a proviso was inserted at the end of Art 335.
M. Nagraj & Ors v. Union of India and Ors. AIR 2007 SC 71 held the amendments constitutional.
2010 Suraj Bhan Meena Vs. The state of Rajasthan. Held that, in view of M. Nagraj & Ors v. Union of India and Ors. AIR 2007 SC 71, if the state wants to frame rules with regard to reservation in promotions and consequential seniority it has to satisfy itself with quantifiable data that is there is backwardness, inadequacy of representation in public employment and overall administrative inefficiency and unless such an exercise was undertaken by the state government the rules in promotions and consequential seniority cannot be introduced.
Reservation in promotion is dependent on the inadequacy of representation of members of SC, ST and backward classes and subject to the condition of ascertaining whether such reservation was at all required. As no exercise was undertaken to acquire quantifiable data regarding the inadequacy of representation. The Rajasthan High Court rightly quashed the notifications providing for consequential seniority and promotion to the members of SC and ST communities and the same does not call for any interference. S. Balakrishnan Vs. S. Chandrasekar (28/2/2005) The Government of Tamil Nadu Vs. Registration Department SC/ST (9/12/2005) The Madras High Court has held that reservation in promotion is available only to SC and ST and not to backward class (OBC) and most backward class (MBC) Sudam Shankar Baviskar Vs. Edu. Off. (Sec), Z.P. Jalgaon 2007 (2) MhLJ 802. Held that consequential seniority is not available to VJNT.
2010 UOI v/s. S. Kalugasalamoorthy
Held that when a person is selected on the basis of his own seniority, the scope of considering and counting him against reserved quota does not arise.
1994 Supreme court advised Tamil Nadu to follow 50% limit Tamil Nadu Reservations put under the 9th Schedule of the constitution.
I.R. Coelho (Dead) by LRS. Vs. State of T.N. 2007 (2) SCC 1: 2007 AIR(SC) 861 Held, Ninth Schedule law has already been upheld by the court, it would not be open to challenge such law again on the principles declared by this judgment. However, if a law held to be violative of any rights in Part III is subsequently incorporated in the Ninth Schedule after 24 April 1973, such a violation/infraction shall be open to challenge on the ground that it destroys or damages the basic structure as indicated in Article 21 read with Article 14, Article 19 and the principles underlying thereunder. Action was taken and the transactions finalized as a result of the impugned Acts shall not be open to challenge.
2005 In Unni Krishnan, J.P. & Ors. Vs. State of Andhra
Pradesh & Ors. (1993 (1) SCC 645), it was held that the right to establish educational institutions can neither be a trade or business nor can it be a profession within the meaning of Article 19(1)(g). This was overruled in T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481, P.A.Inamdar v. State of Maharashtra 2005 AIR(SC) 3226 The Supreme court ruled that reservations cannot be enforced on Private Unaided educational institutions.
93rd constitutional amendment introduced Art 15(5).
Ashoka Kumar Thakur vs. Union of India[5] 1. The Constitution (Ninety-Third Amendment) Act, 2005 does not violate the "basic structure" of the Constitution so far as it relates to the state maintained institutions and aided educational institutions. The question of whether the Constitution (Ninety-Third Amendment) Act, 2005 would be constitutionally valid or not so far as "private unaided" educational institutions are concerned, is left open to be decided in an appropriate case. 2."Creamy layer" principle is one of the parameters to identify backward classes. Therefore, principally, the "Creamy layer" principle cannot be applied to STs and SCs, as SCs and STs are separate classes by themselves. 3. Preferably there should be a review after ten years to take note of the change of circumstances. 4. Mere graduation (not technical graduation) or professional deemed to be educationally forward. 5. Principle of exclusion of Creamy layer applicable to OBC's. 6. The Central Government shall examine as to the desirability of fixing a cut off marks in respect of the candidates belonging to the Other Backward Classes (OBCs) to balance reservation with other societal interests and to maintain standards of excellence. This would ensure quality and merit would not suffer. If any seats remain vacant after adopting such norms they shall be filled up by candidates from general categories. 7. So far as the determination of backward classes is concerned, a Notification should be issued by the Union of India. This can be done only after the exclusion of the creamy layer for which necessary data must be obtained by the Central Government from the State Governments and Union Territories. Such Notification is open to challenge on the ground of wrongful exclusion or inclusion. Norms must be fixed keeping in view the peculiar features in different States and Union Territories. There has to be proper identification of Other Backward Classes (OBCs.). For identifying backward classes, the Commission set up pursuant to the directions of this Court in Indra Sawhney 1 has to work more effectively and not merely decide applications for inclusion or exclusion of castes. 8. The Parliament should fix a deadline by which time free and compulsory education will have reached every child. This must be done within six months, as the right to free and compulsory education is perhaps the most important of all the fundamental rights (Art.21 A). Without education, it becomes extremely difficult to exercise other fundamental rights. 9. If material is shown to the Central Government that the Institution deserves to be included in the Schedule (institutes which are excluded from reservations) of The Central Educational Institutions (Reservation in Admission) Act, 2006 (No. 5 of 2007), the Central Government must take an appropriate decision on the basis of materials placed and on examining the concerned issues as to whether Institution deserves to be included in the Schedule of the said act as provided in Sec 4 of the said act. 10. Held that the determination of SEBCs is done not solely based on caste and hence, the identification of SEBCs is not violative of Article 15(1) of the Constitution.
Relevant Cases
See Arts 12, 14, 15, 16, 19, 335 of the Constitution of India.
State of Madras Vs. Smt. Champakam Dorairanjan AIR 1951 SC 226
General Manager, S. Rly v. Rangachari AIR 1962 SC 36
M R Balaji v. State of Mysore AIR 1963 SC 649
T. Devadasan v Union AIR 1964 SC 179.
C. A. Rajendran v. Union of India AIR 1965 SC 507.
Chamaraja v Mysore AIR 1967 Mys 21
Barium Chemicals Ltd. Vs Company Law Board AIR 1967 SC 295
P. Rajendran Vs. State of Madras AIR 1968 SC 1012
Triloki Nath Vs. The state of Jammu and Kashmir AIR 1969 SC 1
State of Punjab vs. Hira Lal 1970(3) SCC 567
State of A.P. Vs U.S.V. Balram AIR 1972 SC 1375
Kesavanand Bharti v St of Kerala AIR 1973 SC 1461
State of Kerala Vs N. M. Thomas AIR 1976 SC 490 : (1976) 2 SCC 310
Jayasree Vs. State of Kerala AIR 1976 SC 2381
Minerva Mills Ltd Vs Union (1980) 3 SCC 625: AIR 1980 SC 1789
Ajay Hasia v Khalid Mujib AIR 1981 SC 487
Akhil Bharatiya Soshit Karamchari Sangh Vs Union (1981) 1 SCC 246
K. C. Vasant Kumar v. Karnataka AIR 1985 SC 1495
Comptroller & Auditor-General of India, Gian Prakash Vs K. S. Jaggannathan (1986) 2 SCC 679
Syndicate Bank SC & ST Employees Association (Through its General Secretary Sh K S Badalia) & Others Vs. Union of India & Others {1990 SCR(3) 713; 1990 SCC Supl. 350}:
Hindustan Zinc Ltd. Vs A. P. State Electricity Board (1991) 3SCC 299
Indira Sawhney & Ors v. Union of India AIR 1993 SC 477: 1992 Supp (3) SCC 217
Unni Krishnan v. State of A.P. and Ors. (1993 (1) SCC 645)
R K Sabharwal Vs St of Punjab AIR 1995 SC 1371 : (1995) 2 SCC 745
Union of India Vs Varpal Singh AIR 1996 SC 448
Ajitsingh Januja & Ors Vs State of Punjab AIR 1996 SC 1189
Ashok Kumar Gupta: Vidyasagar Gupta Vs State of Uttar Pradesh. 1997 (5) SCC 201
Jagdish Lal and others v. State of Haryana and Others (1997) 6 SCC 538
Chander Pal & Ors Vs State of Haryana (1997) 10 SCC 474
Post-Graduate Institute of Medical Education and Research, Chandigarh Vs. Faculty Association 1998 AIR(SC) 1767 : 1998 (4) SCC 1
Ajitsingh Januja & Ors Vs State of Punjab & Ors AIR 1999 SC 3471
Indira Sawhney Vs. Union of India. AIR 2000 SC 498
M G Badappanvar Vs St of Karnataka 2001(2) SCC 666: AIR 2001 SC 260
T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481
NTR University of Health Science Vijaywada v. G Babu Rajendra Prasad (2003) 5 SCC 350
Islamic Academy of Education & Anr. v. State of Karnataka & Ors. (2003) 6 SCC 697
Saurabh Chaudri & Ors. v. Union of India & Ors. (2003) 11 SCC 146
P.A. Inamdar v. State of Maharashtra 2005 AIR(SC) 3226
I.R. Coelho (Dead) by LRS. Vs. State of T.N. 2007 (2) SCC 1: 2007 AIR(SC) 861
M. Nagraj & Ors v. Union of India and Ors. AIR 2007 SC 71
Ashok Kumara Thakur Vs Union of India. 2008
K. Manorama Vs Union of India. (2010) 10 SCC 323.
Suraj Bhan Meena Vs. State of Rajasthan (2011) 1 SCC 467.
Reservation as right: on Supreme Court judgment
February 11, 2020 00:02 IST
Updated: February 10, 2020 23:30 IST
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Ensuring adequate representation to disadvantaged sections is a state obligation
It is quite understandable that a recent Supreme Court judgment, that there is no fundamental right to claim reservation in promotions, has caused some political alarm. The received wisdom in affirmative action jurisprudence is that a series of Constitution amendments and judgments have created a sound legal framework for reservation in public employment, subject to the fulfilment of certain constitutional requirements. And that it has solidified into an entitlement for the backward classes, including the SCs and STs. However, the latest judgment is a reminder that affirmative action programmes allowed in the Constitution flow from “enabling provisions” and are not rights as such. This legal position is not new. Major judgments — these include those by Constitution Benches — note that Article 16(4), on reservation in posts, is enabling in nature. In other words, the state is not bound to provide reservations, but if it does so, it must be in favour of sections that are backward and inadequately represented in the services based on quantifiable data. Thus, the Court is not wrong in setting aside an Uttarakhand High Court order directing data collection on the adequacy or inadequacy of representation of SC/ST candidates in the State’s services. Its reasoning is that once there is a decision not to extend reservation — in this case, in promotions — to the section, the question whether its representation in the services is inadequate is irrelevant.
The root of the current issue lies in the then Congress government’s decision to give up SC/ST quotas in promotions in Uttarakhand. The present BJP regime also shares responsibility as it argued in the Court that there is neither a basic right to reservations nor a duty by the State government to provide it. The idea that reservation is not a right may be in consonance with the Constitution allowing it as an option, but a larger question looms: Is there no government obligation to continue with affirmative action if the social situation that keeps some sections backward and at the receiving end of discrimination persists? Reservation is no more seen by the Supreme Court as an exception to the equality rule; rather, it is a facet of equality. The terms “proportionate equality” and “substantive equality” have been used to show that the equality norm acquires completion only when the marginalised are given a legal leg-up. Some may even read into this an inescapable state obligation to extend reservation to those who need it, lest its absence render the entire system unequal. For instance, if no quotas are implemented and no study on backwardness and extent of representation is done, it may result in a perceptible imbalance in social representation in public services. Will the courts still say a direction cannot be given to gather data and provide quotas to those with inadequate representation?
Supreme Court on reservation: Opening Pandora’s box
The recent Supreme Court ruling that reservations are not a fundamental right gives rise to certain questions
Supreme Court of India (File photo)
Supreme Court of India (File photo)
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Meera Velayudhan
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The Supreme Court ruled recently that “there is no fundamental right which inheres in an individual to claim reservation in promotion”, and that ‘no mandamus can be issued by court directing state government to provide reservations.’
The verdict gives rise to certain questions. Have reservations been read and interpreted as part of protections and in the spirit guaranteed in Articles 14,15 and 16 (4) which specifically deal with to right to equality of opportunity in employment? Secondly, how have entitlements as fundamental rights and Directive Principles, over the years, been interpreted juridically? Are distinctions being made between fundamental rights as justiciable and directive principles as non-justiciable? Do the Directive Principles not impose an obligation on the state to realise the entitlements of the citizens — thus giving, as Babasaheb Ambedkar held — the Constitution a transformative potential? Are fundamental rights discretionary, as this Supreme Court verdict suggests, and hence the state has no obligations?
Underlying this verdict and also carrying forward ideas of “merit” and ‘efficiency”, is the social debate going on for decades and finding interpretations in varied juridical pronouncements (for example as early as MR Balaji and others vs State of Mysore, 1963). It pitted individual mobility versus class entitlements and the need of the state to identity ‘legitimate claimants’. The verdict extended to say that there was no justiciable rights or constitutional duty to make reservations, thereby reducing substantial equality to formal equality, all of which go against the spirit of the Constitution. The debates on reservations in India have too long carried the presumption that reserved categories lack ‘merit’. Also, as Kannabiran (2010) held, reservations have been reduced in constitutional interpretation from a philosophical premise to one of quantification.
A five- judge Constitution Bench in 2006 in the M Nagraj case held that states were bound to provide quantifiable data on backwardness of SCs, STs, facts on inadequate representation in government jobs and overall administrative efficiency before providing quota in promotions to SC/ST communities. Various state governments had sought a reconsideration of this verdict by a larger bench as it placed conditions which were unnecessary and overlooked stigma of caste and presumed backwardness.
One of those who opposed quota in reservations in the hearings argued that once an employee joins government service, the presumption of backwardness “vanishes”. And that such quota can be continued for class IV and III services but not for higher services.
In September 2018, the Supreme Court turned down an appeal by the Centre to reconsider its earlier verdict that had rejected the idea of reservations for SC/STs in job promotions. It upheld its 2006 order that said that it was not mandatory for government to give reservations in promotions in public sector jobs. This order also stated that states need not collect quantifiable data on backwardness od SC/STs for quota in job promotions.
There were no comments on the 2006 verdict on adequacy of representation of SC/STs in promotions or on administrative efficiency. The Supreme court had, following the idea of ‘creamy layer’ used for Other Backward Classes (OBCs), asked why it could not be made applicable to deny quota in promotion to ‘affluent’ among SC/ST communities. There was an underlying assumption that SC/ST communities are not entitled to social mobility and that social mobility meant that discriminatory attitudes did not persist.
In early 2019, before the parliamentary elections, the Central government decided to legislate 10 per cent reservation in higher education and government employment, sensing the need for upper caste votes — its traditional support base — despite the Supreme Court having held that the Constitution does not permit over 50 per cent reservations and a constitutional amendment needed to be enacted to bypass the Constitution and bring in ‘economic weakness’ as an eligibility criteria. The criteria introduced and passed in Parliament would in effect cover almost all Indians! That caste discrimination and marginalisation can be eliminated by a single policy act, was flawed thinking. The reservation principle was very much linked with full citizenship.
In April 2, 2018, a Bharat bandh called by less known Dalit organisations against the dilution of the stringent provisions of the SC, ST Prevention of Atrocities Act, 1989, evoked wide response from Dalit communities and India witnessed an unprecedented peaceful mass protest, with a few exception of clashes with upper castes, which was noted by political parties. There was and remains an apprehension that constitutional rights are being eroded and that reservation itself could be removed.
Over and above this, the economic policies, privatisation, contract system, and weakening of public education system were leading to newer vulnerabilities among Dalits and tribal communities. The Dalit upsurge witnessed in recent years was also the result of years of mobilisation on issues ranging from land, violence including sexual violence, forced migration, untouchability, manual scavenging, etc.
The flogging incident in Una (Gujarat) and other atrocities on Dalits have energised varied Dalit sub-castes and Dalit organisations to unite. The youth and students in particular mobilised around the Rohit Vemula issue and broader alliances were and are being forged.
What have been considered as ‘sectional’ issues are more and more leading to wider solidarities on citizenship and the challenges to constitutional rights and principles. Responses to varied legal verdicts, including the recent one on SC/ST promotions in jobs, will no doubt be inter-sectional in approach, given the present nature of protests witnessed in varied parts of India on citizenship.
(The writer is a Kochi-based policy analyst)
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