Reservation in public employment

Context: The jurisprudence of reservation relies on the symbiotic coexistence of constitutionally guaranteed equality of opportunity in public employment under Article 16 (1) and classifications thereunder various clauses of the same article, especially Article 16(4) and Article 16 (4 A).

These are facilitating provisions, vest a discretion on the government to consider providing reservations for the socially and educationally backward sections of the society and to provide reservation in promotion to SCs and STs, respectively.

Is reservation a fundamental right?

No. Reservation is not a fundamental right.

Mukesh Kumar and Another vs State of Uttarakhand & Ors. 2020: 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.

However, these pronouncements in 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 Scheduled Castes and Scheduled Tribes.

Reservation in employment

Reservation in employment which was otherwise confined to Scheduled Castes and Scheduled Tribes got extended to OBCs as well on the basis of the recommendations of the 2nd Backward Class Commission as constituted, headed by B.P. Mandal.

The recommendation of Mandal Commission (1980) to provide 27% reservation to OBCs in central services and PSUs, over and above the existing 22.5% reservation for Scheduled Castes and Scheduled Tribes, was sought to be implemented by the V.P. Singh Government in 1990.

What are some other important judgements and statutes regarding the issue of reservation?

Indira Sawhney judgement (1992):

In the judgment, a nine-judge bench upheld the constitutionality of the 27% reservation but put a ceiling of 50% unless exceptional circumstances warranting the breach, so that the constitutionally guaranteed right to equality under Article 14 would remain secured.

The Court declared that Article 16(4) is not an exception to article 16(1), rather an illustration of classification implicit in article 16(1). While Article 16(1) is a fundamental right, Article 16(4) is an enabling provision.

Further, the Court directed the exclusion of creamy layer by way of horizontal division of every other backward class into creamy layer and non-creamy layer.

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 authorize reservation in the matter of promotions. However, the judgment was not to affect the promotions already made.

By the Constitution (Seventy-seventh Amendment) Act, 1995, Article 16(4-A), was inserted to provide that “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”.

Later, two more amendments were brought, one to ensure consequential seniority [Article 16(4 A)] and another to secure carry forward of unfilled vacancies of a year [Article 16(4 B)]

The Constitution Bench Judgment in M. Nagaraj (2006)

A five-judge bench of Supreme Court declared the 1995 amendment as not vocative of basic structure of the Constitution, but laid down certain conditions.

For more – Click here

Jarnail Singh vs Lachhmi Narain Gupta (2018) – Read here

The Constitution (103rd Amendment) Act, 2019

The 10% reservation for Economically Weaker Sections (EWS), other Scheduled Castes, Scheduled Tribes and backward classes for government jobs and admission in educational institutions is currently under challenge before the Supreme Court which has referred the same to a constitution bench.

The verdict in this regard can turn out to be a critical milestone in the jurisprudence of reservation as traditional understanding of backwardness is broadened 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 which referred the same to a bench of five judges and one question was whether the 1992 judgment needs a relook.

Interestingly, the Supreme Court not only affirmed the Indra Sawhney decision, but also 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, citing the breach of ceiling.

Source: This post is based on the article “Reservation in public employment” published in The Hindu on 30th May 22.