More than a political consensus, it is hard data on the absence of marginalised sections from the higher bureaucracy that will give legitimacy to the measure
The decision to amend the Constitution to ensure reservation in promotions for the Scheduled Castes and the Scheduled Tribes has been the subject of much scrutiny without paying sufficient critical attention to the discourse of the Supreme Court on the issue. While the Court is not opposed to reservation in promotions per se, it has left many critical questions unanswered and has not clarified the precise content of the conditions on which it is willing to permit reservation in promotions. It might serve us well to understand the position of the Supreme Court on this issue before evaluating the contents of the proposed amendment.
At the centre of the current controversy is a judgment delivered by a two-judge bench of the Supreme Court in U.P Power Corporation Ltd. v. Rajesh Kumar in April 2012. It had already been held in M. Nagaraj v. Union of India (October 2006) that the state must demonstrate backwardness, inadequacy of representation and maintenance of efficiency before providing reservation in promotions. However, what the U.P Power Corporation did for the first time was to strike down reservation in promotions for not meeting these criteria.
Reservation in promotions has been a sphere of intense disagreement between Parliament and the Supreme Court. To overcome the decision of a nine-judge bench in Indra Sawhney and other judgments that disallowed reservation in promotions and consequential seniority, Parliament enacted three constitutional amendments in 1995, 2000 and 2002. While upholding the constitutional validity of the amendments, the Supreme Court in Nagaraj made it very clear that Article 16 (4A), which was inserted through these amendments, was only an enabling provision. In essence, every time a government or the legislature sought to provide reservation in promotions under Article 16 (4A), it would have to pass constitutional muster. While justifying each attempt to provide reservation in promotions, the state would have to demonstrate backwardness, inadequacy of representation and maintenance of efficiency. The U.P. Government Servants Seniority Rules challenged in the U.P Power Corporation case was one such attempt.
The three conditions laid down in Nagaraj raise a number of concerns. It must be remembered that Article 16 (4A) permits reservation in promotions only for the SCs/STs and not for the OBCs. In this context, the first condition in Nagaraj requiring the state to demonstrate backwardness of the beneficiaries is problematic. It is problematic because it amounts to bringing in the ‘creamy layer’ test for SCs/STs through the backdoor. It has been held numerous times by the Supreme Court, including in the judgment in Indra Sawhney, that the test of ‘creamy layer’ is not applicable to SCs/STs. The settled position of law is that all members of recognised SC/ST groups automatically satisfy the condition of backwardness and there is no burden on the state to further establish the backwardness of those individuals benefiting from reservation. While this requirement exists for the OBCs in terms of the ‘creamy layer’ test, Justice (as he then was) Kapadia’s opinion in Nagaraj does not provide any justification for not following the position endorsed by a larger bench in the context of the SCs/STs.
On the question of inadequacy of representation, the text of Article 16 is clear that it is a matter for the state to determine. While it must base its determination on some material, the question as demonstrated in the U.P Power Corporation case is about the nature of the empirical evidence that is required. The Supreme Court provides no justification for using the cadre as a unit for determining inadequacy of representation and the method could well distort the picture on adequacy of representation. There is no reason why the state cannot make its determination on the basis of a particular group of services or certain ranks across services or even public employment as a whole. The Supreme Court has also failed to address certain other aspects of adequacy of representation. It has not discussed whether achieving proportional representation would be the standard to determine adequacy or whether it considers proportional representation irrelevant in this context. It has also not clarified the period over which adequacy must be determined.
Dr. Ambedkar demonstrated tremendous foresight in the Constituent Assembly when he called for deleting the phrase — “is in the opinion of the state, not adequately represented” — from Article 16(4). He believed that it would become a matter of litigation and the courts could substitute their judgment on adequacy of representation by holding that a reservation was being made despite being adequately represented.
In many ways it is the efficiency question that has always been at the heart of the debate concerning reservation in promotions. Prabhat Patnaik, while making a strong argument for viewing reservation in employment as promoting efficiency, has accurately observed that the supporters of reservation in public employment rarely rebut the ‘loss in efficiency’ argument and appear to counter it only by resorting to arguments about social justice and inclusion. Ever since the early days of the Supreme Court, it has been a constant refrain that reservation in employment leads to a loss in efficiency. The basis for that argument has never been articulated in any of the Supreme Court’s judgments and has always been stated as a self-evident truth.
The ‘loss in efficiency’ argument, apart from not being grounded in any sort of empirical study, is largely the result of an extremely conservative understanding of ‘merit’. There has been no judicial discussion about the role of efficiency across different categories of public employment. What does it really mean to talk about efficiency in the context of a railway ticket inspector, an IAS officer, a Group D employee, a nuclear scientist, etc.? The quality of discourse on this issue, in terms of the arguments from the government’s side and the Supreme Court’s judgments, leaves a lot to be desired.
The way forward
The government’s response, as reflected in the 117 Constitution Amendment Bill introduced in the Rajya Sabha, is unsatisfactory. While the proposal remedies the error in Nagaraj on the issue of backwardness of the SCs/STs, its approach to ‘adequacy of representation’ and efficiency is counterproductive. The proposed Article 16 (4A), which seeks to substitute the existing Article 16 (4A), has done away with concerns of efficiency by stating that nothing in Article 335 can be an impediment, and the reference to ‘adequacy of representation’ has been deleted.
This leads to the anomalous situation where the above two factors continue to be relevant for the OBCs and the SCs/STs as far as initial appointments are concerned since Article 16(4) will not be similarly amended. The proposed amendment offers us no insight into why these factors are irrelevant in the particular case of reservation in promotions for the SCs/STs. It would have been far more legitimate to argue for a more meaningful understanding of efficiency before the Supreme Court rather than completely negating it as a factor through a constitutional amendment. Similarly, removing the reference to ‘adequacy of representation’ will only further question the legitimacy of reservation in promotions.
The Supreme Court must give the state room for manoeuvre on what is acceptable empirical data. It also cannot remain silent on some critical normative questions and keep the government guessing about the terms on which it will permit the exercise of power under Article 16 (4A). Reservation in promotions at the entry level does not ensure that the project of equality of opportunity is complete. We could argue endlessly whether reservation in promotions would take that project further but, in terms of governance, we have already made a political and constitutional choice. It cannot be the judiciary’s task to indirectly undo that choice having already upheld it and it must be the government’s task to make legitimate use of it. The envisaged constitutional amendment is the least legitimate option because any political consensus will be based on electoral compulsions. Governments, State and Central, must present the country with hard facts to derive legitimacy — hard facts confirming the lack of presence of India’s most marginalised sections in the upper echelons of bureaucratic power. It is this evidence of the lack of presence that will expose the hollowness of the claims concerning equality of opportunity in public employment.
(Anup Surendranath is an Assistant Professor of Law at the National Law University, Delhi, and a doctoral candidate at the Faculty of Law, University of Oxford.)