- Supreme Court has questioned the extent of implementation of quota reservation in government jobs.
- In a response given, after Senior Advocates argued for the quota in promotion, the Supreme Court has set out a series of questions, asking the all-important question about the extent of quotas in Government Jobs.
- The apex court even asked the question as to till when should a backward class considered in need of assistance.
- The court asked if ‘Scheduled Casts and Scheduled tribes would continue to be backward forever and if the perpetuation of quotas even for promotion was required.
- They questioned the legality and interest of allowing quotas in promotion.
- They also mulled the concept of creamy layer elimination in job promotions.
- Entry-level reservation in employment on the basis of backwardness is no problem. But what is worrying us is the accelerated promotion to all SC/ST employees without looking into their status of employment.
- The bench that there must be a rationale behind reservation a timeline as well as an extent of reservation.
Constitutional status of reservation in public employment and promotion
- Article 16 (4), deals with the State’s powers for providing for appointments or posts for any backward class of citizens.
- Article 16 (4A), arms the state with power to make provisions for quota in promotion with consequential seniority to SC/ST communities.
- Article 16 (4B), deals with unfilled vacancies of a year reserved for SC/ST kept from being filled up.
- Article 46 of the Constitution states that “The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.”
- The 1992 Supreme Court ruling in the Indra Sawhney case said that reservations in job promotions are unconstitutional but allowed its continuation for five years.
- In 1995, the 77th amendment to the Constitution was made to amend Article 16 before the five-year period expired to continue with reservations for SC/STs in promotions.
- It was further modified through the 85th amendment to give the benefit of consequential seniority to SC/ST candidates promoted by reservation.
- The 82nd amendment inserted a provision in Article 335 to enable states to give concessions to SC/ST candidates in promotion.[
- The validity of all the above amendments was challenged in the Supreme Court through various petitions clubbed together in M. Nagaraj & Others vs. Union of India & Others, mainly on the ground that these altered the Basic Structure of the Constitution.
- In 2006, the Supreme Court upheld the amendments. However, it also laid down three factors which ought to determine the state’s policy in this regard, according to the report in Bar and Bench.They are:
- The backwardness of the class;
- Inadequacy of representation in service; and
- Overall administrative efficiency
- It also said that the creamy layer concept cannot be applied to the Scheduled Castes and Scheduled Tribes for promotions in government jobs.
- Further, the 5-judge constitution bench in the case also held that the state has to gather quantifiable data to determine the adequacy of representation and extent of backwardness of a certain class, if they want to give reservation in promotion.
- In November 2017, a two-judge Supreme Court Bench led by Justice Kurian Joseph, had re-opened the issues of creamy layer and quota in promotions for SC/ST by referring them to a Constitution Bench.
- Now, a five-judge Constitution Bench led by Chief Justice Dipak Misra is referring the 2006 verdict to a larger Bench for a re-examination.
Arguments in favour of reservation in promotion
- The government cites historical deprivation.
- The SC/ST communities have faced centuries of deprivation at the hands of society.
- They have been deprived of access to temples, schools and the basic facilities of life. Even today, Dalit grooms cannot ride horses.
- The state needs to show affirmative action by giving them equality of opportunity.
- The 2006 verdict had effectively created an impossible situation for providing accelerated promotions with consequential seniority for SC/ST communities in government services.
- The state cannot dissect the SC/ST and see those who are worthy (of quota) and those who are not.
- As far as the qualifier inadequate representation was concerned, establishment of inadequacy of representation is difficult.
- It is not possible to comply in every case the conditions laid down by the Nagaraj judgment in 2006.
- Most states cannot prepare quantifiable data to show inadequacy/adequacy of representation because quantifiable data is not static and filling up vacancies was a dynamic and continuous process.
Arguments against reservation in promotion
- The three criteria — backwardness, inadequacy and administrative efficiency — are compelling reasons so that reservation by government was not excessive.
- The three qualifiers were meant to prevent reservation from making an inroad into the right of equal opportunity in public employment.
- The three qualifiers are meant to prevent “reverse discrimination” by State.
- Quota in promotion for SC/ST employees is considered to be against the fundamental right to equality.
- This is considered as the second move to cultivate the powerful electorate bloc after the efforts to restore provisions of SC/St atrocities act.
- There is a danger in making reservation immortal and not applying the creamy layer to SC/STs.
- That is the reason why OBCs want to be included among SCs and STs.
- There is need to find a stable equilibrium between justice to the backwards, equity for the forwards and efficiency for the entire system.