RESERVATION IN PROMOTION: A PIE IN SKY DEAL TILL NOW

India is the most diverse and populous country which is also known for being the world’s largest democracy. This diversity is in terms of religion, language, socio-economic status, political beliefs and various other ideologies. It is a symbol of unity in one way and of discord in another. One of the facets which cannot be denied is, the majority of a certain population and minority of another in terms of religion, race, beliefs, socio-economic status, which obviously results in a preponderance of one religion over another, one caste over another. This row over majority oppressing minority creates a despising factor among each other due to difference in the set of beliefs & ideologies.

The same is prevalent in India through the ‘Caste System’. It has been a part of our customs and traditions since time immemorial. This caste system is understood to have been a point of discord among majority ‘upper caste’ to minority ‘lower caste’ in terms of their lifestyle, socio-economic status, income and other factors. In general, the majority group is understood to be a point of guiding style for others among communities which results in opinions favoring the majority over the minority and others are left precluded. This is a general social phenomenon that could be easily perceived in every social structure. This minority and majority in the West are more about race, ethnicity and language but in India, it’s more about religion, caste then language etc. These are discernible facts present in our society since time immemorial.

Background

From an Indian historical perspective, this division could be traced back as early as the first depiction in ‘Manusmriti’[1] which divides human beings into four varnas, Brahmins being on the top of this hierarchy which are referred to be priests, scholars and teachers, Kshatriyas being on the second which are referred to be rulers, warriors, administrator, Vaishyas on the third which are referred to be agriculturalist, merchant and Shudras on the fourth place which are referred to be servants, subordinates to the upper one and another classification which sometimes merged into Shudras are ‘untouchables’ which are out of caste or very subordinate to all and are referred to be  tanners and launderers.

This division puts Brahmins at the top of the hierarchy and Shudra’s or Untouchables(Present Scheduled Castes and Scheduled Tribes) on the lowest. In British India caste-based reservation in opportunity provided in employment was for the first came from the princely state of Travancore. For the first time in Indian history, a 50 per cent reservation rule was made for backward classes in services in district Kolhapur. A very recent instance in modern India could be seen dividing representation of one over another on the basis of unrepresented religion by Prime Minister of Britain, Ramsay MacDonald who set forth the award on the basis of religion known as ‘Communal Award’ for Indian Christian, Sikhs, Muslims, Anglo-Indians and Europeans. This was vehemently opposed by Mahatma Gandhi while being supported by Dr Ambedkar.

These were the examples of affirmative actions taken by the State to protect its weaker section in the pre-constitutional era. In favor of reservation until caste system is there and for providing reservation to lower castes, Dr Ambedkar advocated for annihilation of caste system:-

                           “It is a pity that Caste even today has its defenders”

                                                        – Dr B.R. Ambedkar

Reservation is the most powerful tool in the modern era used by the State to protect its marginalized or weaker section. It implies affirmative action by reserving seats for the ‘unrepresented’ from the mass or groups. It works as in by doing positive discrimination[2] for securing equity among the people. Reservation in employment and education is said to have been a dimension of Article 14 Right to Equality but in reality, it is the ‘Principle of Equity’. Equity implies distribution of resources according to an individual’s needs whereas equality implies the same resources for everyone irrespective of the individual’s circumstances. As discussed above ‘reservation’ is a result of widespread oppression faced by weaker sections as to being from a certain caste.

What does this oppression implies and How the oppression faced in the past by these communities is going to help them now by providing reservation to them? So the logic is very simple, this oppression implies discrimination of every kind but mainly of their being from a particular caste. Due to the division everyone had to follow in that society, most of the resources for better lifestyle and leisure were with Upper Castes, which prevented lower castes from getting basic necessities, better lifestyle, Dalits were prevented from getting the same education as to upper castes people, Dalits had to work in different earning modes to sustain themselves, they were prevented from getting affluent with the main group. They were prevented from getting the same resources as others which led to their backwardness in society in terms of various demographic indicators, so reservation is much needed to uplift them.

Considering a hypothetical situation

‘A’ is from the upper caste who got better education and everything whereas ‘B’ belongs to a lower caste who somehow tried to educate himself but he didn’t get full-fledged education as in comparison to ‘A’. ‘B’ was prevented by social pressure to get an education. Now both of them applied to the UPSC[3] exam, First of all, this competition is not fair at all and secondly considering the better education ‘A’ has got it is expressly implied that he will succeed because he got all resources needed and fulfilled the minimum eligibility criteria as well but on the other side ‘B’ will be rejected on the the the first stage itself because he doesn’t fulfill the minimum eligibility of having a bachelor’s degree. This was because of the discrimination he faced which lead to his social backwardness to education and economic backwardness. This backwardness will continue until and unless there is something that gives reservation to them to study and become affluent till then they will continue to be backward. Reservation helps the State to fulfill its responsibility of uplifting or streamlining the backward classes with upper classes by giving them concessions in exams for getting seats in Institutes or employment under the State through which they become upfront in everything.

Post-Constitutional Era Developments

Initially, the provisions of reservation were in lieu of reserving seats of House of People[4] for Scheduled Castes and Scheduled Tribes as mentioned in  Part XVI-Article 330[5]and that too for 10 years(Article 334) subject to legislature discretion of extension. Considering the situation of time during Independence there was fear among the dalit members of Constituent Assembly that if something is not done now, lower strata will suffer the oppression for a very long time and nothing will be done in future because ultimately it is members of  upper-caste who will have the responsibility to make these and they will do nothing. So, if provisions were not made today it will result in continuous injustice to lower caste people of our Society. So accordingly quota’s in the legislature were reserved implying that if members of the upper caste are elected they will serve upper caste people but if members of lower caste are elected they will voice their opinion about the upliftment of the lower caste which will ultimately help in streamlining their community members.

Article 15(4) which was added by ‘Constitution (First) Amendment Act, 1951’ and Article 16(4) both became the guiding force for providing reservation to Scheduled Castes & Scheduled Tribes in educational Institutions and in employment under the State. Unlike Article 334, these provisions were not given a life principle meaning thereby any stand-by period was not given in respect to these articles. Before the insertion of Article 15(4) by first Amendment, it had three clauses (1) & (2) talked about the prohibition of discrimination on certain grounds by State and Clause (3) laid out requiring on the part of State to make special provisions for Women & Children.

Issues related to the reservation system for the first time were raised in case of:-

Champakam Dorairajan v. State of Madras[6]

This was the first case heard by SC in lieu of special provisions by the State. The Government of Madras made special provision to reserve seats in medical colleges for socially backward classes contending that Article 46(One of the DPSP) requires State to make special provision for and in the interest of SC/STs

Article 46:-

“The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.”[7]

But this was held unconstitutional by SC saying that Directive Principles of State Policy(DPSP) cannot override Fundamental Rights.

After which the government introduced the 1st Amendment to override this Judgment and inserted Article 15(4) which provided for the following:-

“Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes”.[8]

This amendment was used by the Government of Mysore for providing reservation which was challenged in case of:-

M.R. Balaji v. State of Mysore [9]

The Government of Mysore notified the reservation of seats in medical and engineering colleges for socially backward classes which increased the ceiling of the reservation to 68 per cent.

Issues Raised:-

  • Who are socially backward classes?
  • Is there a limit to the ceiling of reservation?

Apex Court ruled that Constitution of India specifically makes way to identify who are backward classes through the appointment of commission in lieu of Article 340 and on the second issue SC said reservation must be within reasonable limit otherwise it would be great prejudice to meritorious student and in this regard, SC held the above notification is unconstitutional and ruled for a reservation that should be in the reasonable limit of 50 per cent. It was also held that 15(4) is not an obligatory provision; instead, it is an enabling one that is at the discretion of the State.

Two commissions were constituted for the other backward classes(OBC). The first commission was set up in 1955 long before the M.R. Balaji case[10] which is known as the ‘Kelkar Commission’ whose recommendations were not satisfactory as to the identification of Other Backward Classes, so it was not implemented.

In 1980 long after M.R. Balaji case[11], another commission was set up to identify backward castes on factors like social, economic and educational backwardness by the Government of Prime Minister Morarji Desai. It was known to be the ‘Mandal Commission’ which identified 3743 backward castes who were in need of reservation. It originally recommended a reservation of 29 per cent but later 27 per cent was implemented. These recommendations were implemented with huge uproar in-country in the year 1990 under the leadership of Prime Minister V. P. Singh.

Two major Contention opposing this implementation among people were:-

  • This reservation would imply support of caste-based division by law
  • Other backward classes (OBC) are not as they were presented by the government

This implementation was challenged through writ in the Supreme Court under article 32 parallelly Prime Minister P.V. Narsimha Rao brought another order to increase the 27 per cent ceiling to 37 per cent. This case was referred from 5 Judge bench to 7 Judge Bench and was decided in case of:-

Indra Sawhney v. Union of India & Ors.[12]

In this case, the Supreme Court ruled that reservation shall not exceed the 50 per cent limit and reservation in promotion shall not be allowed. A concept of the creamy layer was recognized in this case which was to be excluded from the benefit of reservation. It was held that the caste system needs to be considered but backward classes under 16(4) cannot be classified solely on economic criteria. It was held that socially and educationally backward classes as mentioned in 15(4) is not the same as backward classes in 16(4). An application of classification of backward classes into backward and more backward classes was not allowed. The upper ceiling of 50 per cent was held to be reasonable and constitutional.  

The Constitution (Ninety-Third) Amendment Act, 2005

This act inserted Article 15(5) which provided for:-

“Nothing in this article or in sub-clause (g) of clause (1) of Article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30”[13].

Which was ultimately challenged in the case of:-

Ashoka Kumar Thakur v Union of India[14]

This case involved the provision of a 27 per cent reservation for OBC under the ‘Central Educational Institute(Reservation in Admission) Act, 2006’. This reservation provision was challenged and was argued to be evil & a point of friction which caused division among society. The Supreme Court ruled that this amendment is valid as it is the duty of the State to take positive measures to remove inequality and the 93rd amendment is one of them.

According to a survey by Planning Commission between 2004-2005 and 2011-2012, it was observed that more people from SC/ST were brought above the poverty line after giving them the benefit of reservation, so considering this Government of India recently passed the 103rd amendment to give effect to 10 per cent reservation in jobs and educational Institute to economically backwards in the general category which inserted Article 15(6), this amendment is said to have overpassed the 50 per cent ceiling as laid in Indra Sawhney Judgement but it was also held in same that it can be surpassed in extraordinary circumstances.

Reservation in Promotion: When, How & Present Status

In the Indra Sawhney Judgement, it was ruled by the Supreme Court that reservation in promotion shall not be allowed. To overrule this Judgment and to give effect to the reservation in promotion as the government introduced ‘Constitution(Seventy-Seventh) Amendment Act, 1995 which provided for reservation in the promotion and inserted article 16(4)(A) which is as follows:-

“(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.”[15].

After giving effect to this, another amendment was passed in Constitution(Eighty-Fifth) Amendment Act, 2002, It amended Article 16(4)(A) and provided for

In article 16 of the Constitution, in clause (4A), for the words “in matters of promotion to any class”, the words “in matters of promotion, with consequential seniority, to any class” shall be substituted[16].

This 85th amendment provided for Consequential Seniority, which implies the promotion of reserved candidates’ peers over general candidate peers to retain seniority in the subsequent promotion.

Example- X(General Category) is on level 2 senior to Y(Reserved Category) who is on the same level, now promotion in lieu of reservation Y will be promoted to level 3 before X and X will not gain his seniority within Level 3 over Y.

This amendment was challenged in case of:-

M. Nagaraj v. Union of India[17]

The contention was raised by petitioners to quash 85th Amendment retrospectively since 17.6.1995 under Article 32 as being violative of basic structure and unconstitutional. A point of reservation being within a reservation was raised to be an unconstitutional practice.

The 5 Judge bench, in this case, upheld the validity of this amendment meaning thereby that reservation in the appointment and as well as promotion for SC/ST but on the basis of few yardsticks.

  1. Though the State is not bound to make reservations it is the discretion of the State but if they want to reserve the seats, the State has to collect quantifiable data which shows the inadequacy of representation in public employment 0n basis of
  2. Social Backwardness
  3. Inadequacy of representation in Public Employment
  4. Effect of reservation on Administrative Efficiency
  1.  This Judgment reversed the earlier stance which excluded creamy layer principle to SC/ST, now it will also be applicable on SC/ST.
  2. Held that compelling reasons were required to breach the 50 per cent limit, held to avoid excessiveness and avoid its application for an indefinite period.

This was Challenged in:-

Jarnail Singh v. Lachhmi Narain Gupta[18]

This case challenged the stance of inclusion of creamy layer(economic criteria) for reservation in promotions as said in M. Nagaraj Judgement. The interesting point here is that the creamy layer principle is based on economic progression while SC/ST reservation was given not on economic backwardness but on social and educational backwardness.

Issues Raised

  • Whether there is a need to reconsider M. Nagaraj Judgement?
  • Do states have to collect quantifiable data in the promotion to prove backwardness & inadequacy in the promotion or not?
  • Whether creamy layer in SC/ST need to be excluded while reserving seats for SC/ST in promotion?

The Supreme Court held that there is no need to reconsider M.Nagaraj Judgement. It confirmed the application of the creamy layer principle to SC/ST in promotions. It was also held that State is obligated to collect quantifiable data as the inadequacy not for the whole service but to the grade/post or Cadre of service. SC ruled that reservation is a policy decision in the purview of the Executive and Legislature and not on the Judiciary. Its discontinuation or continuation lies with them. A periodical review of the benefits of reservation was to be held to get the idea of the effectiveness of the reservation.

Conclusion

Reservation is like a magic wand to streamline the weaker section of society and in a way, it is an initiative to correct the mistakes of the past. It’s been more than 70 years since reservation has continued to be a part of society so we should reflect as a society about the impacts it has made. As it has been revealed by the Planning commission survey that it has benefited the benefactor and uplifted them from being below the poverty line so it must be on a part of the State(the Executive & Legislature) to implement it with subjectivity but should not be barred as to the restrictive and difficult yardsticks laid by Judiciary for performing its duty.

References

CASES

  • Champakam Dorairajan v. State of Madras,AIR 1951 SC 226
  • M.R. Balaji v. State of Mysore, AIR 1963 SCR 649
  • Indra Sawhney v. Union of India & Ors. AIR 1993 SC 477
  • Ashok Kumar Thakur v. Union of India [2002]INSC 614
  • M. Nagaraj v. Union of India (2006) 8 SCC 212
  • Jarnail Singh v. Lachhmi Narain Gupta (2018) 10 SCC 396

ACTS

  • The Constitution (First) Amendment Act, 1951
  • The Constitution (Seventy-Seventh) Amendment Act, 1995
  • The Constitution (Eighty-Fifth) Amendment Act, 2002
  • The Constitution (Ninety-Third) Amendment Act, 2005
  • Central Educational Institute(Reservation in Admission) Act, 2006

WEB ARTICLES

  • Goyal, V., 2022, Reservation in promotions.[online]iPleaders.

Available at <https://blog.ipleaders.in/reservation-in-promotions/>[Accessed 10 February 2022]Arpita Sarkar, “JUDICIAL REVIEW OF RESERVATION IN PROMOTION: A FADING PROMISE OF EQUALITY IN SERVICES GUARANTEED BY THE INDIAN CONSTITUTION” 11 NUJS L. Rev. 2 (2018)


[1] also known as the Mānava-Dharmaśāstra or Laws of Manu, is believed to be the first ancient legal text and constitution among the many Dharmaśāstras of Hinduism.

[2] practice of favouring someone due to ‘protected characteristics’

[3] Union Public Service Commission

[4] Lok Sabha or Lower House

[5] The Constitution of India, art. 330.

[6] AIR 1951 SC 226

[7] The Constitution of India, art. 46.

[8] The Constitution of India, art. 15(4).

[9] AIR 1963 SCR 649

[10] Supra note 10 at 5.

[11] Ibid. at 11

[12] AIR 1993 SC 477

[13] The Constitution of India, art. 15(5).

[14] [2008] INSC 614

[15] The Constitution of India, art. 16(4)(A).

[16] THE CONSTITUTION (EIGHTY-FIFTH AMENDMENT) ACT, 2001, s.

[17] (2006) 8 SCC 212.

[18] (2018) 10 SCC 396


Author: Tarun Tyagi


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