Supreme Court decodes reservations in promotions

On 10th May 2019, a division bench of Supreme Court passed a landmark verdict on the issue of reservation in promotions for Scheduled Castes and Scheduled Tribes in public employment. Writing the opinion, Justice D Y Chandrachud examines the notion of substantive equality that permeates our entire Constitution, and how reservation as a policy only serves to advance substantive equality, and not derail it.

The facts of the case are that in 2002, the Karnataka Government passed the Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of the Reservation (to the Posts in the Civil Services of the State) Act, which provided for consequential seniority to persons belonging to the Scheduled Castes and Scheduled Tribes promoted under the reservation policy of the State of Karnataka.

This law was struck down in March, 2017 by the Supreme Court on the basis that the State had not undertaken any exercise of determining whether the SCs and STs suffered from ‘inadequacy of representation’, and ‘backwardness’, as well as assessed the ‘overall impact’ on the ‘efficiency of administration’.

This assessment was made mandatory in the earlier Supreme Court decisions that upheld different laws providing reservations in jobs in various States. Accordingly, the State of Karnataka commissioned a study by the Ratna Prabha Committee to submit a report on the backwardness and inadequacy of representation of SCs and STs in the State Civil Services and the impact of reservation on overall administrative efficiency in the State of Karnataka.

Based on the report, the Government enacted an almost similar law, i.e., the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act, 2018, which was again challenged in the Supreme Court.

In his judgment, Justice Chandrachud unpacks many concepts like ‘merit’ ‘efficiency’ that have been used to criticise the reservation policy in India for almost the entire 72 years. He noted that “the Constitution does not define what the framers meant by the phrase ‘efficiency of administration’.

Article 335 cannot be construed on the basis of a stereotypical assumption that roster-point promotees drawn from the SCs and STs are not efficient or that efficiency is reduced by appointing them. This is stereotypical because it masks deep-rooted social prejudice. The benchmark for the efficiency of administration is not some disembodied, abstract ideal measured by the performance of a qualified open category candidate.”

The judgment mentions “Efficiency of administration in the affairs of the Union or of a State must be defined in an inclusive sense, where diverse segments of society find representation as a true aspiration of governance by and for the people.

If, as we hold, the Constitution mandates realisation of substantive equality in the engagement of the fundamental rights with the directive principles, inclusion together with the recognition of the plurality and diversity of the nation constitutes a valid constitutional basis for defining efficiency. Our benchmarks will define our outcomes.

If this benchmark of efficiency is grounded in exclusion, it will produce a pattern of governance which is skewed against the marginalised. If this benchmark of efficiency is grounded in equal access, our outcomes will reflect the commitment of the Constitution to produce just social order. Otherwise, our past will haunt the inability of our society to move away from being deeply unequal to one which is founded on liberty and fraternity.”

He further aptly observes that “if the government‘s sole consideration in appointments was to appoint individuals who were considered ‘talented’ or ‘successful’ in standardised examinations, by virtue of the inequality in access to resources and previous educational training (existing inequalities in society), the stated constitutional goal of uplifting these sections of society and having a diverse administration would be undermined.

Thus, a ‘meritorious’ candidate is not merely one who is ‘talented’ or ‘successful’ but also one whose appointment fulfills the constitutional goals of uplifting members of the SCs and STs and ensuring a diverse and representative administration.” With respect to the findings of the Committee, and whether the Courts can second guess the findings, the Supreme Court held that the judiciary must be circumspect in scrutinising the collection of data by the State on the adequacy of representation and impact on efficiency.

The judicial review ought to be limited to consider whether the materials examined were relevant or irrelevant, and only if extraneous or irrelevant materials were looked at, the Courts can interfere. Thus, while upholding the findings of the Committee, the Court upheld the 2018 Act.

This judgment is path-breaking in many ways, including in debunking the myth that reservations impair administrative efficiency and are anti-ethical to ‘meritocratic society’. In fact, the policy of reservations is a tool to achieve substantive equality and due representation in public services.

It will go a long way in encouraging other States to enact laws, after conducting proper studies, to asses which communities are not adequately represented in the State services, and to provide them with adequate representation.

Amritananda Chakravorty is a freelance journalist. Views are personal.

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