“Reservation in promotion for SC & ST”

Reservation in promotion in public posts cannot be claimed as a fundamental right, the Supreme Court reiterated in a judgment.

Background:

• In India, the reservation policy is an age-old policy being practised. Its origin has its roots scattered from the ancient times when the practice of the caste system, untouchability and Varna system was dominant in the society. 
• Reservation Policy is a process of reserving a certain percentage of seats (maximum 50%) for a certain class (Scheduled Castes, Scheduled Tribes, Backward classes, etc.) in the public sector units, union and state civil services, Union and state government departments and in all public and private educational institutions.
  • Reservation Policy in Pre- Independence Era:
• During the British rule, various elements of reservation in the Government of India Act of 1909 and the legal origin of Reservation Policy began with lying down of the Government of India Act, 1919. Given below are the major policy initiatives that rooted down the concept of reservation in India:
  
  
  • The Government India Act, 1919: The Act not only introduced several reforms for the Indian Governmental institutions but also addressed many issues of minorities including the formation of communal electorates.
  • The announcement of MacDonald Award: A significant turn took place from the Round Table Conference of June 1932, when Ramsay MacDonald (Prime Minister of Britain), proposed the Communal Award, which provided for separate representation for Muslims, Sikhs, Indian Christians, Anglo-Indians, and Europeans.
  • The Government of India Act, 1935: The stamping of the provisions of the Poona Pact, 1932 were done in the Government of India Act of 1935 where the reservation of seats for depressed classes was allotted.
  • Reservation Policy in Post- Independence Era:
• The scenario changed in the post-independence era and the reservation policy gained even more momentum.
• The Constituent Assembly chaired by Dr B.R Ambedkar framed the reservation policy and many Articles (Articles 15, 16) in the Indian Constitution were dedicated for the same.

What is Reservation?

• In India, reservation is a system which ensures that individuals born in the castes categorised as SCs and STs and Other Backwards Classes are given priority over General Category candidates in recruitment to government jobs, admission in higher educational institutions, and selection of Legislative and parliament members.
• The objective of the reservation is to address the historic oppression, inequality and discrimination faced by these communities.

The current scenario of reservation in India:

• Today 50% of seats in government-aided educational institutions and public jobs are reserved for the SC, ST and, OBCs.
• The central government of India reserves 27% of higher education, and individual states may legislate further reservations. 
• The current scenario of Reservation in India is:
  • 15% seats are reserved for Scheduled Castes (SC).
  • 5% of seats are reserved for Scheduled tribes (ST).
  • 27% seats are reserved for Other backward classes (OBC).
  • Total constitutional reservation percentage is 49.5% and the rest 50.5% seats are open to all i.e. general, SC, ST And OBC.
• However, there are states laws that exceed this 50% limit and these are under litigation in the Supreme Court.
• The most recent development in the reservation system was seen in 2019 when the Union Cabinet has approved of 10% reservation in educational institutions and jobs for the economically weaker sections (EWS) in the general category.
• This is the first time that reservations have been suggested for a section of society based only on economic criteria.
• The Constitution (124th Amendment) Bill passed by both the houses will be over and above the already existing 50% reservation quotas and will be given to those who do not fall under any reservations as of now.

How does the Indian Constitution deal with Reservation?

• Article 15(4): It was added by the Constitution (1st Amendment) Act, 1951. It provides for special provision for the advancement of backward classes.
• Article 16(3): Article 16(3) is an exception to clause 2 of Article 16 which forbids discrimination on the ground of residence. It provides for reservation of Posts in Public Employment on the Basis of Residence:
• Article 16(4): Article 16(4) is the second exception to the general rule embodied in Articles 16(1) and (2). It provides for reservation for Backward Classes in Public Employment. It empowers the state to make special provision for the reservation in appointments of posts in favour of any backward class of citizens which in the opinion of the State are not adequately represented in the services under the State.
• Fundamental Right: The Constitution of India provides for the right to equality. A fundamental right, it provides for equality irrespective of religion, race, gender, caste or place of birth. It also includes the right of equal opportunity in employment as well as the abolition of titles and untouchability.
• Preamble: The preamble states, “Equality of status and of opportunity”. Reservation hence seemed to be a justified recourse. It elevated those sections of society that had for generations been neglected. It provided a chance for equal opportunities or status in society and culture.

 The Judgement:

• A Bench of Justices L. Nageswara Rao and Hemant Gupta observed that State governments are not bound to make reservations. Even the courts could not issue a mandamus directing States to provide reservations.
• Not a fundamental right: There is no fundamental right which inheres in an individual to claim reservation in promotions. Articles 16 (4) and 16 (4-A) of the Constitution did not confer individuals with a fundamental right to claim reservations in promotion.
• The Articles empower the State to make a reservation in matters of appointment and promotion in favour of the Scheduled Castes and Scheduled Tribes only “if in the opinion of the State they are not adequately represented in the services of the State”.
• The inadequacy of representation is a matter within the subjective satisfaction of the State.
• Thus, the State government has discretion “to consider providing reservations, if the circumstances so warrant.
• It is settled law that the State government cannot be directed to provide reservations for appointment in public posts. Similarly, the State is not bound to make a reservation for Scheduled Castes and Scheduled Tribes in matters of promotions.
• However, if a State wishes to exercise its discretion and make reservation in promotions, it has to first collect quantifiable data showing the inadequacy of representation of a class or community in public services.
• If the decision of the State government to provide SC/ST reservation in promotion to a particular public post is challenged, it would have to place the data and prove before the court that reservation was necessary and does not affect the efficiency of administration.

 The debate and sentiments on reservations continue to play a major role in the case of India. It will not die out any time soon because it permeates into our very social and cultural fabric.