A five-judge Constitution bench allowed for grant of quota for promotions in the government jobs to SCs and STs without the need to “collect quantifiable data” reflecting the backwardness among these communities as mandated by the Nagaraj judgement of 2006.

Background

Nine judge bench in Indra Sawhney case (1992)

• The Supreme Court upheld the Mandal Commission’s 27 percent quota for backward classes with a condition that combined reservation should not exceed 50%.
• It also struck down the government notification reserving 10% government jobs for economically backward classes among the higher castes.
• Creamy layer must be eliminated from the Backward Classes.
• There should be no reservation in the promotions.

As the Indra Sawhney judgement disallowed reservation in promotions and consequential seniority, Parliament enacted three constitutional amendments in 1995, 2000 and 2002, the most contested one being Article 16 (4A).

Article 16 (4A): Allows for reservation in matters of promotion, with consequential seniority, in favour of the Scheduled Castes and the Scheduled Tribes which are not adequately represented .

Five judge bench in Nagaraj Case (2006)

The court upheld the constitutional validity of the amendments. But it also said that for providing quota in promotions the states must provide:

✓ quantifiable data on the backwardness of Scheduled Castes (SC) and Scheduled Tribes (ST)

✓ the facts about their inadequate representation

✓ the overall administrative efficiency.

More about the recent judgement

• The Centre had alleged that the verdict in the M Nagraj case put unnecessary conditions in granting quota benefits.
• The bench did not make changes about the two other conditions given in the 2006 Nagaraj verdict which dealt with adequacy of representation and administrative efficiency.
• The court said that the requirement to collect quantifiable data showing backwardness of SCs and STs was “contrary” to the nine-judge bench judgement in the Indra Sawhney verdict of 1992.
• The apex court also turned down the Centre’s plea that overall population of SC/ST be considered for granting quota for them.
• The court also asked the government to examine the possibility of introducing creamy layer for Scheduled Castes (SCs) and Scheduled Tribes (STs) says that if some sections bag all the coveted jobs ,it will leave the rest of the class as backward as they always were. This observation has led to criticism of the judgement in some quarters.
• However, it declined the demand to refer the case to a 7 judge bench to reconsider its 2006 Nagaraj judgement.

Arguments against Reservation in promotion

Hurts efficiency of administration: This aspect becomes important in highly technical domains such as Nuclear research, space program, etc.

Cornering of Benefits: Critics point out that like the reservation aspect, even the promotions will be cornered by a select few castes and tribes.

Reservation is suffice: There should not be quota in promotions for higher services as the of backwardness of SC and ST employees is removed once they join government service.

Arguments in favour of Reservation in promotion

False notion of “efficiency”

• The ‘loss in efficiency’ argument is largely the result of an extremely conservative understanding of ‘merit’.
• 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 and not grounded in any sort of empirical study.
• No person can be promoted unless they obtain a good rating in their annual confidential report which is currently the measure of efficiency.

Lack of representation in higher levels

• The Scheduled Castes and Scheduled Tribes lack representation mainly at the Group A level which do not have direct recruitment provisions. Promotions are the only way members of these communities can make it to this level.
• There were only 4 SC/ST officers at the secretary rank in the government in 2017.

Large number of Vacant posts: There was no definition of the expression “backward” of which “quantifiable data” was to be collected. As a result, all promotions made post-Nagraj were struck down on the ground that there was no quantifiable data.

Historical disadvantage: Given that the marker of identity of Scheduled Castes is the historic disadvantage of the untouchable, the question of proving backwardness by quantifiable data for promotion does not arise.

Way forward

• With regards to the Supreme court observation about introduction of creamy layer with respect to SC/ST reservations, talks should be conducted with all stakeholders before moving ahead on such a contentious issue.
• As far as promotions are concerned, as of now there is ambiguity and vagueness in promotion process and hence there is a need for a comprehensive law to be enacted in line with the supreme court judgement.

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