A judgment delivered by a two-judge bench of the Supreme Court on May 10 has the potential to influence the discourse on reservations far more than what constitution benches of five or nine judges could achieve during the last three decades. The judgment, pronounced by Justices U.U. Lalit and D.Y. Chandrachud, and authored by the latter, will be long remembered for its lucidity, and for articulating a rare understanding of what constitutes “merit” and “efficiency” in a society where social inequalities pose a serious challenge to policy makers.
The Wire breaks down the judgment, explaining the essential background and its implications.
The Nagaraj minefield
In the discourse on reservations, the Supreme Court’s nine-judge constitution bench’s judgment (1992) in Indra Sawhney vs Union of India constitutes a landmark, as it upheld reservations for Other Backward Classes (OBCs). The bench had also held in this judgment that reservations in appointments, under Article 16(4) of the constitution, do not apply to promotions.
In order to change the basis of this judgment (which is a legitimate exercise by parliament), the Constitution (77th Amendment) Act, 1995 was passed by parliament, inserting Article 16(4A), which enables the state to make any law regarding reservation in promotion for SCs and STs.
Other amendments followed. Article 16(4B) provides that reserved promotion posts for SCs and STs that remain unfilled can be carried forward to the subsequent year. Article 16(4B) ensures that the ceiling on the reservation quota – capped at 50% by Indra Sawhney – for these carried forward unfilled posts does not apply to subsequent years.
Article 335 mandates that reservations have to be balanced with the ‘maintenance of efficiency’. The 2001 amendment to it, carried out during Atal Bihari Vajpayee’s reign at the Centre, clarified that the article will not apply to the state relaxing evaluation standards in matters of promotion.
In 2006, a five-judge constitution bench of the Supreme Court delivered its judgment in M. Nagaraj vs Union of India, validating parliament’s decision to extend reservations for SCs and STs to include promotions with three riders. It required the state to provide proof for the backwardness of the class benefitting from the reservation, for its inadequate representation in the position/service for which reservation in promotion is to be granted and to show how reservations in promotions would further administrative efficiency.
The judgment in Nagaraj soon gave rise to misgivings that it failed to recognise that the SCs and STs continued to suffer from centuries of discrimination, by requiring the state to reassess their backwardness in the case of reservations in promotions. The critics of Nagaraj claimed that a five-judge bench erroneously and impliedly overruled a nine-judge bench decision in Indra Sawhney, which clearly held that SCs and STs are homogenous and could not be sub-categorised.
Nagaraj, they said, paved the way for denial of reservations for SCs and STs in promotions, if some of them fail to qualify the criteria for backwardness, inadequate representation in services and efficiency, let alone their non-membership of the creamy layer group within the SCs and STs. The application of the creamy layer principle to the SCs and STs was the most contentious part of the Nagaraj judgment, which the critics claimed was inconsistent with the nine-judge bench ruling in Indra Sawhney.
These criticisms against Nagaraj were reviewed by another five-judge bench in Jarnail Singh vs Lachhmi Narain Gupta last year. In this case, the bench held that Nagaraj’s insistence on collection of quantifiable data on backwardness in relation to the SCs and STs was contrary to Indra Sawhney, and therefore, bad in law. But the bench approved Nagaraj’s insistence on proof for inadequate representation of classes for whom promotional posts are reserved, and on submission of additional proof that efficiency would not be impacted by such reservation, because of Article 335.
Secondly, the bench in Jarnail Singh held that the creamy layer principle is an essential aspect of the equality code, and therefore, exclusion of creamy layer while applying the principle of reservation is justified, even in the case of SCs and STs.
B.K. Pavitra I
In 2017, a two-judge bench of the Supreme Court had declared a 2002 legislation passed by Karnataka assembly invalid (B.K. Pavitra vs Union of India-I) on the ground that Karnataka had not collected quantifiable data on the three parameters – inadequacy of representation, backwardness and the impact on overall efficiency – before making reservations in promotions.
The 2002 Act passed by the Karnataka assembly provided for consequential seniority to roster-point promotees based on the length of service in a cadre.
After the decision of the Supreme Court in B.K. Pavitra I on March 22, 2017, the Karnataka government set up the Ratna Prabha Committee, headed by the then additional chief secretary 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.
This committee submitted its report on May 5, 2017. On the basis of the Ratna Prabha Committee report, the state assembly passed the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation Bill, 2017. The Bill received president’s assent under Article 200 of the constitution, after the state governor referred it for his consideration following a controversy that the state legislature could not undo a Supreme Court’s judgment, declaring a similar law passed in 2002 invalid.
The 2018 Act was challenged in the Supreme Court in B.K. Pavitra II.
B.K. Pavitra II
In B.K. Pavitra II, the Supreme Court bench of Justices U.U. Lalit and D.Y. Chandrachud held on May 10 that the state legislature, by enacting the 2018 Act, took care to remedy the underlying cause which led to a declaration of invalidity of the 2002 Act. Curative legislation is constitutionally permissible, and is not an encroachment on judicial power, the bench held. Such a law is valid because it removes the basis of the Supreme Court’s decision.
While curing the defect, it is essential to understand the reasons underlying the declaration of invalidity of the earlier Act. The reasons constitute the basis of the declaration. The legislature cannot simply override the declaration of invalidity without remedying the basis on which the law was held to be ultra vires, the bench clarified.
The bench held that both the governor’s reserving a Bill for the consideration of the president under Article 200 and the president’s assent or his withholding of it to a Bill under Article 201 are not justiciable. The bench’s ruling has implications for federalism, as governor’s action in referring a Bill for consideration of the president, when there are no clear grounds for doing so, can leave a state legislature without any remedy.
The bench had to resolve this issue, as the petitioners had challenged the Karnataka law on the ground that the state governor’s reference of the Bill for president’s consideration was illegal. They had also challenged the president’s assent to the Bill.
Relying on Indra Sawhney, the bench held that the opinion of the government on the adequacy of representation of the SCs and STs in the public services of the state is a matter which forms a part of the subjective satisfaction of the state. When an authority is vested with the power to form an opinion, it is not open for the court to substitute its own opinion for that of the authority, nor can the opinion of the authority be challenged on grounds of propriety or sufficiency, the bench held categorically.
In Jarnail, it was held that Article 16(4A) has been couched in language which would leave it to the states to determine adequate representation depending upon the promotional post that is in question.
The bench held that the Ratna Prabha Committee cannot be held to have acted arbitrarily in adopting recourse to sampling methodologies or to have based its conclusions on any extraneous or irrelevant material. If sampling is a valid methodology for collection of data, the exercise cannot be invalidated only on the ground that data pertaining to a particular department or of some entities was not analysed. The data which was collected pertained to 31 departments which are representative in character. The state has analysed the data which is both relevant and representative, before drawing its conclusions. There are limitations on the power of judicial review in entering upon a factual arena involving the gathering, collation and analysis of data, the bench held.
Once an opinion has been formed by the state government on the basis of the report submitted by an expert committee which collected, collated and analysed relevant data, it is impossible for the court to hold that the compelling reasons which Nagaraj requires the state to demonstrate have not been established. Even if there were to be some errors in data collection, that will not justify the invalidation of a law which the competent legislature was within its power to enact, the bench further clarified.
The adequacy of representation has to be assessed with reference to a benchmark on adequacy. Conventionally, the state and Central governments have linked the percentage of reservation for the SCs and STs to their percentage of population, as a measure of adequacy. It is open to the state to make reservation in promotion for SCs and STs proportionate to their representation in the general population, the bench explained.
Explaining Article 335, the bench held 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. Centuries of discrimination and prejudice suffered by the SCs and STs in a feudal, caste-oriented societal structure poses real barriers of access to opportunity, the bench observed. The proviso to Article 335 contains a realistic recognition that unless special measures are adopted for the SCs and STs, the mandate of the constitution for the consideration of their claim to appointment will remain illusory, the bench elucidated.
The proviso also emphasises that the need to maintain the efficiency of administration cannot be construed as a fetter on adopting these special measures designed to uplift and protect the welfare of the SCs and STs, the bench made it clear. To quote the bench:
“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. 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.
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 a just social order.
Hence, while interpreting Article 335, it is necessary to liberate the concept of efficiency from a one sided approach which ignores the need for and the positive effects of the inclusion of diverse segments of society on the efficiency of administration of the Union or of a State. Establishing the position of the SCs and STs as worthy participants in affairs of governance is intrinsic to an equal citizenship. Equal citizenship recognises governance which is inclusive but also ensures that those segments of our society which have suffered a history of prejudice, discrimination and oppression have a real voice in governance. Since inclusion is inseparable from a well governed society, there is , in our view, no antithesis between maintaining the efficiency of administration and considering the claims of the SCs and STs to appointments to services and posts in connection with the affairs of the Union or of a State.”
More significant, the bench argued for a nuanced understanding of efficiency and merit by stating as follows:
“Administrative efficiency is an outcome of the actions taken by officials after they have been appointed or promoted and is not tied to the selection method itself. The argument that one selection method produces officials capable of taking better actions than a second method must be empirically proven based on an evaluation of the outcomes produced by officials selected through both methods.
Arguments that attack reservations on the grounds of efficiency equate merit with candidates who perform better than other candidates on seemingly “neutral” criteria, e.g. standardised examinations. Thus, candidates who score beyond a particular “cut-off point” are considered “meritorious” and others are “non-meritorious”. This is a distorted understanding of the function “merit” plays in society.
A “meritorious” candidate is not merely one who is “talented” or “successful” but also one whose appointment fulfils the constitutional goals of uplifting the members of the SCs and STs and ensuring a diverse and representative administration.”
The judgment cites Karnataka Civil Services General Recruitment Rules 1977 which states that all appointments by promotion shall be on an officiating basis for a period of one year and at the end of the period of officiation, if appointing authority considers the person not suitable for promotion, she/he may be reverted back to the post held prior to the promotion. A candidate on promotion has to serve a statutory period of officiation before being confirmed; this ensures that the efficiency of administration is, in any event, not adversely affected, the bench concluded.
The Supreme Court found merit in the submission of the Karnataka government that progression in a cadre based on promotion cannot be treated as the acquisition of creamy layer status. It underlined that the court in Jarnail rejected the submission that a member of an SC or ST who reaches a higher post no longer has a taint of untouchability or backwardness. These are significant observations, which will have resonance in all cases concerning reservations in future.