Supreme Court Reaffirms Promotion is Not a Fundamental Right

Context:

The Supreme Court of India has recently reiterated that promotion is not a fundamental right for government servants. The judgement emphasized that the Constitution does not prescribe any criteria for filling promotional posts, leaving this matter to the discretion of the legislature and the executive.

Relevance:

GS-II: Social Justice and Governance (Government Policies and Initiatives, Issues related to Minorities), GS-II: Polity and Constitution (Constitutional Provisions, Important Judgements)

Dimensions of the Article:

1. Constitutional Provisions on Reservation
2. Reservation not a fundamental Right
3. Arguments for applying reservation in promotions
4. Pros and Cons of Reservation in Promotion
5. Reservation Related Developments in India
6. Way Forward

Constitutional Provisions on Reservation

• Article 16(4) empowers the state to make 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.
• By way of the 77th Amendment Act, a new clause (4A) was added to Article 16, empowering the state to make provisions for reservation in matters of promotion to Scheduled Caste/Scheduled Tribe employees if the state feels they are not adequately represented in services.

Reservation not a fundamental Right

• It is a settled law, time and again reiterated by the Supreme Court, that there is no fundamental right to reservation or promotion under Article 16(4) or Article 16(4 A) of the Constitution.
• Rather they are enabling provisions for providing reservation, if the circumstances so warrant (Mukesh Kumar and Another vs State of Uttarakhand & Ors. 2020).
• However, these pronouncements no way understate the constitutional directive under Article 46.
• Article 46 mandates that the state shall promote with special care the educational and economic interests of the weaker sections of the people and in particular SCs and STs.
• However such provisions resulted in the ever-evolving jurisprudence of affirmative action in public employment.

Arguments for applying reservation in promotions

• As there is a peculiar hierarchical arrangement of caste in India, it is obvious that SCs and STs are poorly represented in higher posts.
• Denying application of reservation in promotions has kept SCs and STs largely confined to lower cadre jobs.
• Hence, providing reservation for promotions is even more justified and appropriate to attain equality.
• This judgment destabilises the very basis of reservation, when there is no direct recruitment in higher posts.
• This delineation of the scope of reservation as at the entry level and in promotions will only lead to confusion in its implementation.
• Now, by declaring that reservation cannot be claimed as a fundamental right is a dangerous precedent in the history of social justice.

Pros and Cons of Reservation in Promotion

Reservation Related Developments in India

Mandal storm

• Reservation in employment which was otherwise confined to SC and STs got extended to new section called the Other Backward Classes (OBCs).
• This was the basis of the recommendations of the Second Backward Class Commission as constituted, headed by B.P. Mandal.
• The Mandal Commission (1980) provided for 27% reservation to OBC in central services and public sector undertakings.
• This was over and above the existing 22.5% reservation for SCs and STs, was sought to be implemented by the V.P. Singh Government in 1990.
• The same was assailed in the Supreme Court resulting in the historic Indra Sawhney Judgment.

Indra Sawhney case, 1992

• In its landmark 1992 decision in Indra Sawhney vs Union of India, the Supreme Court had held that reservations under Article 16(4) could only be provided at the time of entry into government service but not in matters of promotion.
• It added that the principle would operate only prospectively and not affect promotions already made and that reservation already provided in promotions shall continue in operation for a period of five years from the date of the judgment.
• On June 17, 1995, Parliament, acting in its constituent capacity, adopted the seventy-seventh amendment by which clause (4A) was inserted into Article 16 to enable reservation to be made in promotion for SCs and STs.

The Constitution (Seventy-seventh Amendment) Act, 1995

• In Indra Sawhney Case, the Supreme Court had held that Article 16(4) of the Constitution of India does not authorise reservation in the matter of promotions.
• However, the judgment was not to affect the promotions already made and hence only prospective in operation, it was ruled.
• By the Constitution (Seventy-seventh Amendment) Act, 1995, which, Article 16(4-A), was inserted.
• It aimed to provide the State for making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State.
• This was to be in favour of the SCs and the STs which, in the opinion of the State, are not adequately represented in the services under the State.
• Later, two more amendments were brought, one to ensure consequential seniority and another to secure carry forward of unfilled vacancies of a year.

M. Nagaraj case, 2006

• The constitutional validity of Art 16(4A) was upheld by the Supreme Court in the M. Nagaraj v. Union of India 2006 case; however, State is not bound to make such reservations in promotions.
• If the states seek to make reservation in promotions, then it must collect quantifiable data on three parameters
• The backwardness of the class
• The inadequacy of the representation of that class in public employment;
• The general efficiency of service would not be affected

Jarnail Singh vs Lachhmi Narain Gupta case, 2018

• In Jarnail Singh vs Lachhmi Narain Gupta case of 2018, the Supreme Court held that reservation in promotions does not require the state to collect quantifiable data on the backwardness of the Scheduled Castes and the Scheduled Tribes.
• The court upheld the argument that once various caste groups were listed as SC/ST, this automatically implied they were backward.
• That judgment had, while modifying the part of the Nagaraj verdict which required States to show quantifiable data to prove the ‘backwardness’ of a Scheduled Caste/Scheduled Tribe community to provide quota in promotion in public employment, rejected the Centre’s argument that Nagaraj misread the creamy layer concept by applying it to SC/ST.

The Constitution (103rd Amendment) Act, 2019

• The 10% reservation for Economically Weaker Sections (EWS) other SCs, STs and backward classes for government jobs and admission in educational institutions.
• This is currently under challenge before the Supreme Court which has referred the same to a constitution bench.
• This was a critical milestone to specifically include economic backwardness without social backwardness as is traditionally seen.

 Dr. Jaishri Laxmanrao Patil vs Chief Minister (2021)

• Despite the Indra Sawhney ruling, there have been attempts on the part of many States to breach the rule by way of expanding the reservation coverage.
• The Maharashtra Socially and Educationally Backward Classes Act 2018, (Maratha reservation law) came under challenge before the Supreme Court.
• This case was referred to a bench of five judges to question whether the 1992 judgment needs a relook.
• Interestingly, the Supreme Court affirmed the Indra Sawhney decision, and struck down Section 4(1)(a) and Section 4(1)(b) of the Act which provided 12% reservation for Marathas in educational institutions and 13% reservation in public employment respectively.
• This judgment gave out a strong message that some State governments blatantly disregard the stipulated ceiling on electoral gains rather than any exceptional circumstances.

Way Forward

• Assessing Current Representation: It is essential to evaluate the present representation of SC/ST/OBCs at various levels and departments. This data will help set specific targets for fulfilling reservation quotas.
• Merit and Relaxation System: Advocate for a system that emphasizes merit while providing some relaxation in qualifying marks for SC/ST/OBC candidates in promotions. This ensures that qualified candidates from these communities have a better chance while maintaining acceptable competency standards.
• Addressing Concerns: Acknowledge the issues related to unqualified candidates being promoted due to reservations.
• Training and Mentorship: Propose robust training and mentorship programs for promoted SC/ST/OBC employees to bridge any skill gaps and ensure they excel in their new roles.
• Temporary Measure: Highlight that reservations are a temporary measure aimed at achieving long-term social justice and equal opportunity in promotions.
• Parallel Initiatives: Advocate for simultaneous initiatives that enhance education and access to resources for these communities, ultimately leading to a scenario where reservations might not be required.

-Source: Times of India