Govt. asks SC to set norms for quota in promotions

Context:

• The Supreme Court asked the Government to justify reservations in promotions and asked what exercise it had undertaken to justify its decisions.
• The Government has said that the time has come for the Supreme Court to “give concrete basis for the SC, ST and OBC to fill up vacancies” while stating that “there is no need to verify any further or collect quantifiable data after the roster system.”

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. Is reservation in promotions a fundamental right?
3. Need for “Quantifiable Data”
4. Arguments for applying reservation in promotions
5. Indra Sawhney case, 1992
6. M. Nagaraj case, 2006
7. Jarnail Singh vs Lachhmi Narain Gupta case, 2018
8. About the Recent SC Hearings on Reservation in Promotion

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.

Is reservation in promotions a fundamental right?

• The scope for reservation for the Backward Classes is promised in Part III of the Constitution under Fundamental Rights.
• Articles 16(4) and 16(4A) empowers the state to provide reservation for SCs and STs in public employment.
• The right to equality is enshrined in the Preamble of the Constitution.
• Many see that the reservation is against Article 16 (Right to equality).
• But there is an absence of equal opportunities for the Backward Classes due to historic injustice by virtue of birth entails them reservation.
• Articles 16 (2) and 16(4) are neither contradictory nor mutually exclusive in nature, but are complementary to each other.

Need for “Quantifiable Data”

• There is a question whether the quantifiable data for inadequate representation is a must for giving reservation in promotions.
• This question has been addressed by Article 16(4) in the Constitution.
• It reads that the State can make any provision for the reservation of appointments or posts in favour of any backward class of citizens which in the State’s opinion, is not adequately represented in the State services.
• Here, “in the State’s opinion” should not be construed as the discretion of the state to give the reservation or not.
• On the contrary, it means if the state feels that SCs and STs are under-represented, it is in the domain of the state to provide reservation.
• There is no mention in the Constitution about quantifiable data.
• Even after 70 years of SC/ST reservation, their representation is as low as 3%.

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.

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.

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
  1. The backwardness of the class
  2. The inadequacy of the representation of that class in public employment;
  3. 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.

About the Recent SC Hearings on Reservation in Promotion

What the Supreme Court said?

• The Supreme Court (on 6^th October 2021) asked the Centre what it had done to collect quantifiable data —in accordance with its constitution bench decisions — to show, among others, inadequacy of representation of Scheduled Caste (SC) and Scheduled Tribe (ST) members in public employment under it to back its policy to provide them reservation in promotions and to produce the data, if any, before it.
• The Supreme Court said that it will first deal with the issue whether reservation in promotion has been implemented on the basis of such quantifiable data.
• The SC also called it “disturbing” that the Union government did not discontinue reservation in promotion for people belonging to SC/STs even after their numbers exceeded the upper ceiling of 15% and 7.5% respectively, of positions in some classes of central government jobs.

The Government’s response

• The Union government urged the Supreme Court to do away with the requirement of collecting quantifiable data by the Centre and states to determine the representation of people belonging to Scheduled Castes (SCs) and Scheduled Tribes (STs) while implementing reservation in promotion.
• The Govt. said that there is a roster system in place in every cadre of the government departments to ascertain the posts required to be filled up by SCs/STs, and therefore the prerequisite of quantifiable data (as was laid down by two Constitution bench judgments of the apex court) should NOT remain.
• Seventy-five years of Independence have not been able to bring members of the Scheduled Castes and Scheduled Tribes on par with the forward classes of society.

-Source: The Hindu