7 PM |Reservations as a right: On SC judgment on reservations in promotions|11th February 2020

Context:Reservation in appointments and promotion.

More in news:

• A Supreme Court judgement last week overturned a 2012 Uttarakhand High Court verdict, and ruled that reservations and promotion quotas are not a fundamental right.

Reservation:

• Reservation in India is provided as a form of affirmative action acting as a positive discrimination, which means reserving access to seats in the government jobs, educational institutions, and even legislatures to certain sections of the population such as Scheduled Castes, Scheduled Tribes and Other Backward Classes.
• The reservation nourishes the historically disadvantaged castes and tribes, listed as Scheduled Castes and Scheduled tribes (SCs and STs) by the Government of India, also those designated as Other Backwards Classes (OBCs) and also the economically backward general. 
• The reservation is undertaken to address the historic oppression, inequality, and discrimination faced by those communities and to give these communities a place. 
• It is intended to realise the promise of equality enshrined in the Constitution.
• The Constitutional basis being:
• Article 15 (4): It allows State to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
• Article 16 (4): It allows 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.
• Article 16 (4A): It allows State to make any provision for reservation in matters of promotion, with consequential seniority, 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.
• Article 335 recognises that special measures need to be adopted for considering the claims of SCs and STs in order to bring them to a level-playing field.
• To summarise, the Constitution of India grants state government the power to reserve vacancies for backward sections, and even grant reservation in matters of promotion for posts under it. This can be done if the state believes that the reserved categories are inadequately represented in public services under it.

What is the Case?

• The Supreme Court decision came against pleas regarding Uttarakhand government’s decision (in 2012) to fill up all posts in public services in the state without providing reservations to Scheduled Castes and Scheduled Tribes.
• The government’s decision was challenged in the Uttarakhand High Court, which struck it down and in turn directed the government to collect quantifiable data regarding inadequacy of the representation of the Scheduled Castes and Scheduled Tribes in government services so as to make an informed decision regarding the provision of reservations. This was then appealed to the Supreme Court.

Supreme Courts Recent Judgement (Mukesh Kumar and Anr versus The state of Uttarakhand and ors.):

• A Supreme Court bench of justices L Nageswara Rao and Hemant Gupta ruled that states are not bound to make reservations, nor is reservation in promotions a fundamental right. The top court said that it cannot order state governments to provide reservations.
• The Supreme Court, taking recourse to its previous decisions, stated that the duty of the state to make reservations is only a discretionary power which can be exercised only as per its wish and that the state government cannot be directed to provide reservations for appointment in public posts.
• Moreover, the need for the state to collect quantifiable data showing inadequacy of representation of that class in public services is only necessitated if it wishes to exercise its discretion and make such provision for reservations.
• Thereby, while setting aside direction issued by the High Court, the SC bench observed that the State Government is not bound to make reservations and there is no fundamental right which inheres in an individual to claim reservation in promotions.

Previous judgments rendered by the court:

• Indra Sawney Case, 1992:
• The introduction of Article 16 (4-A) happened in light of the judgment of Indra Sawney versus Union of India, where the court had held that no reservations can be made in cases of promotions.
• 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.
• It also ruled that the creamy layer can be and must be excluded.
• Nagaraj case in 2006:
• The Court in M Nagaraj versus Union of India upheld the constitutionality of the provision concerning promotions subject to the qualification of the state feeling the need to provide the quota.
• This stands in addition to the court’s decision that Article 16(4) has to be read along with Article 335 of the Constitution, the effect of which is that the state should provide reservations on grounds of inadequate representation if such reservations do not adversely affect the maintenance of efficiency of administration.
• Jarnail Singh & Ors vs. Lacchmi Narain Gupta & Ors:
• In 2018, the Supreme Court delivered its verdict in the Reservation in Promotion case. A five-judge Bench of the Supreme Court unanimously held that the judgment delivered in Nagaraj in 2006, relating to reservations in promotions for SC/ST persons, does not need reconsideration by a larger seven-judge Bench. The Bench also struck the demonstration of further backwardness criterion from Nagaraj.
• On one hand the Court struck down the further backwardness criterion, while on the other hand introduced the principle of creamy layer exclusion. It held that creamy layer exclusion extends to SC/STs and, hence the State cannot grant reservations in promotion to SC/ST individuals who belong to the creamy layer of their community.

Advantages of Reservation Policy in India:

• Historical injustice:Reservations are a political necessity in India, for giving due representation to all sections who have been historically neglected because of deep rooted caste system.
• Although Reservation schemes do undermine the quality of education but still ‘Affirmative Action’ has helped many of the under-privileged or under-represented communities to grow and occupy top positions in the world’s leading industries.
• Reservation schemes are needed to provide social justice to the most marginalized and underprivileged which is their human right.
• Meritocracy is meaningless without equality. First all people must be brought to the same level, whether it elevates a section or decelerates another, regardless of merit.

Negative fallouts of Reservation Policy:

• Reservation is similar to internal partition because in addition to being a form of ethnic discrimination, it also builds walls against inter-caste and inter-faith marriages.
• Reservations are the biggest enemy of meritocracy. By offering reservation through relaxed entry criteria, we are fuelling inflation of moderate credentials as opposed to the promotion of merit based education system, which is the foundation of many progressive countries.
• Caste Based Reservation only perpetuates the notion of caste in society, rather than weakening it as a factor of social consideration, as envisaged by the constitution.  Reservation is a tool to meet narrow political ends, by invoking class loyalties and primordial identities.
• The benefits of reservation policy have largely been appropriated by the dominant class within the backward castes, thereby the most marginalised within the backward castes have remained marginalised. It has been observed that mostly the beneficiaries of reservation have been the children of the highest paid professionals and high rank public officials.
• Poor people from “forward castes” do not have any social or economic advantage over rich people from backward caste. In such a case, discriminating against the “forward caste” goes counter to the logic of reservation. It would create another “backward class” some years down the line. This ‘perceived’ injustice breads frustration and apathy in the society. The recent protests demanding quotas by some of the forward castes, in Gujarat and Rajasthan, is the testimony to this fact.

Conclusion:

The issue of reservation has remained a cause of disagreement between the reserved and the non- reserved sections of the society. Reservation is no doubt good, as far as it is a method of appropriate positive discrimination for the benefit of the downtrodden and economically backward Sections of the society but when it tends to harm the society and ensures privileges for some at the cost of others for narrow political ends, as it is in the present form, it should be done away with, as soon possible. It is time we address the challenge of reservations honestly, openly, fairly and innovatively.

Source:https://www.thehindu.com/opinion/editorial/reservation-as-right/article30785768.ece