Reservation in promotions for SCs and STs

Context:

• In a landmark judgement, Supreme Court addressed two issues related to reservation in promotion for SCs and STs:
  a. No need for quantifiable data: It relieved the states from collecting quantifiable data on backwardness for providing reservation in promotions for STs and STs.
  b. Validity of creamy layer: It upheld the validity of application of creamy layer in reservations in promotions for STs and SCs.

Background:  

• Article 16(4A) of the Constitution permits reservation in promotion posts for the SCs and STs, but Supreme Court judgments over the years have imposed certain conditions for the state to exercise its power under this provision.
• 1955-1992:

Reservation in promotion for ST/SC had been in operation since 1955 till 1992.  In Indra Sawhney Case (1992), Supreme Court held it unconstitutional, stating that the reservation policy cannot be extended to promotions.

• 1995:

This year, law was amended to allow reservation in promotions. Through 77^th constitutional amendment act, Clause 4A was inserted in Article 16 which restored provisions of reservations in promotions.

• 2001:

Through the 85^th constitutional amendment act, 2001, ‘Consequential seniority’ in case of promotion by the virtue of reservation for the government servants belonging to the SCs and STs, was restored with retrospective effect from June 1995.

• 2006:
  M.Nagraj Case: The apex court upheld constitutional amendments for the quota in promotions in government jobs while calling for maintenance of data on the extent of backwardness, which has not proved easy to quantify. The court further held that before framing any law, the state will have to satisfy the test of
  
  a. Backwardness
  b. Inadequate representation
  c. Overall efficiency

As per the M Nagraj verdict, concept of creamy layer was not to be applied for STs and SCs promotions in government jobs.  This has been in line with the earlier two verdicts of Indra Sawhney & others Vs. Union of India (1992) and E V Chinnaiah vs. State of Andhra Pradesh (2005).

• Relying on 2006 SC judgment, several High Courts stuck down reservation in promotions.
• From 2011 onwards, with government failing to comply with Nagraj Case guidelines, various High Courts quashed the decision on granting reservation in promotion. In 2017, Delhi High Court quashed the Centre’s office memorandum issued in 1997 on implementing the policy and also set aside all such promotions in the last 20 years.
• 2012:

Constitutional Amendment Bill (117): In 2012, the bill providing reservation in promotions on government posts to SCs and STs was passed in Rajya Sabha. The bill, however, lapsed and could not be passed in Lok Sabha due to differences among political parties.

The original draft of the 117^th Constitutional Amendment Bill sought to amend Article 16(4A) to influence the Constitutional discourse on three critical aspects of the debate on quotas in promotions- determining the backwardness of SCs/STs beneficiaries; impact on efficiency; and empirical data to establish the lack of representation of the SCs/STs in promotion posts.

• 2015:

An appeal was made by the Centre in Supreme Court against quashing of reservation by various High Courts. The Court had directed to maintain status quo.

• 2016:

A parliamentary panel had directed the Centre to expeditiously pass the bill to safeguard the interests of SCs and STs in government services.

• 2017:

Delhi High court quashed government’s order of extending reservation in promotion to employees belonging to the STs and SCs beyond five years from November 16, 1992.

About:

• 2018: Supreme Court earlier this year allowed the centre to implement the long-reservation policy in promotion. Quotas in promotions will be ‘in accordance with law’, which will mean under-reservation of Schedule Caste/Schedule Tribes must be established while also ensuring administrative efficiency is not compromised.
• The ‘legality of the law’ was still to be determined by the apex court while allowing reservation in promotions temporarily.
• Thus, with recent verdict, SC modified the Nagraj verdict of 2006 and relieved the states from collecting quantifiable data on backwardness for providing reservation in promotions for STs and SCs.
• The court has held that the whole purpose of reservation is to see that the backward classes of citizens move forward so that they may march hand in hand with other citizens of India on equal basis. This will not be possible if the creamy layer within that class bags all the coveted jobs in the public sector, leaving the rest of the class as backward as they always were.

Arguments in favour of reservation:

• Constitutional Status of STs and SCs: Supreme Court’s suggestion in Nagraj verdict that the SC/ST beneficiaries of quotas in promotions must be ‘backward’ is without merit. The constitutional position is that all SCs/STs are deemed to be backward and there cannot be a further determination of ‘backwardness’ among them.
• Entry level and after: Inclusion through recruitment is the mere beginning of an empowerment process. It needs to be carried forward in the form of parity and equality at the highest decision-making level. There is hardly any presence of STs and SCs at secretary, joint secretary and additional secretary in the government. Around 40 % of SCs are in the ‘Group D’ services and below.

• Arguments against reservation:

• Treating equals unequally: Reservations seek to remedy unequal starting positions, but once introduced, during promotions they serve inverse purposed as they treat equals unequally. The argument for promotions, and reservations based on caste/community, and not on merit, is clearly has weak ground.
• Incentivizing backwardness: More than six decades are enough to study the efficacy of reservation. With limited success, if reservation in promotion is to be continued, it needs to be regularly tweaked to keep the purpose of its introduction alive.
• Enhances caste consciousness: Reservation in promotion will further enhance caste consciousness.
• Late entrants of STs/SCs in Government services: Average admissible age of STs/SCs aspirants in civil services and other competitive exams is 29-34 whereas for other candidates it is in the range of 24-28 years. This impedes the candidates from SCs and STs to reach at the higher levels of the governments services. The solution is clearly not reservation in promotion but lowering the entry age of SC/ST candidates.

• Way Forward:

  A comprehensive piece of legislature that would deal with ambiguity related to reservation in promotions is needed. The Act should try to rectify the current issues such as

• Undefined parameters of efficiency.
• Absence of transparency in evaluating backwardness and efficiency of STs/SCs
• Presence of ambiguity regarding whole process of promotions in government services.

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Verdict in a nutshell:

Practice Question:

Reservation in promotions for SCs and STs in government services is to bring un-equals at par with equals? Substantiate the view in the light of recent Supreme Court judgement.