The low representation of the S.Cs and S.Ts in posts to which the principle of reservation in promotion applies is patent and notorious.

ON April 27, the Supreme Court in its verdict in U.P. Power Corporation Ltd vs Rajesh Kumar & Ors quashed Section 3(7) of the Uttar Pradesh Public Servants (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, and Rule 8A of the U.P. Government Servants Seniority (3rd Amendment) Rules, 2007.

Reservation in promotion for the S.Cs and S.Ts was introduced in 1955 and its continuance has been ensured by the Constitution (Seventy-seventh Amendment) Act, 1995, introducing Clause (4A) in Article 16, which reads as follows:

Nothing in this article shall prevent the State from making 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.

The constitutional validity of this amendment and three other amendments pertaining to the S.Cs and S.Ts was upheld by the Supreme Courts Constitution Bench in the Nagaraj case. Therefore, the impression created by the media and some leaders that in its U.P. Power Corporation Ltd judgment, the court has struck down reservation in promotion itself is wrong. The court has only struck down the provisions in the U.P. Act and Rule in view of the failure of the U.P. government to provide data showing compelling reasons, backwardnesss and inadequate representation in services and certain other stipulations laid down in the Nagaraj case. Therefore, the impression that the constitutional amendments proposed are for introducing a new reservation in promotion for the S.Cs and S.Ts or to restore it is also wrong.

The U.P. Act provided reservation in promotion only for the S.Cs and S.Ts. It is not possible for the Centre or any State to provide reservation in promotion for the Backward Classes by an executive order or by legislation because Clause (4A) of Article 16 permits this only in the case of the S.Cs and S.Ts. Therefore, the media impression that the U.P. Act provided reservation in promotion for the B.Cs also is wrong.

The Supreme Court judgments in the Nagaraj case and subsequent cases that have a bearing on reservation in promotion for the S.Cs and S.Ts have held that,

(i) The right to equality under Article 16(1) is the fundamental right of every citizen; but Clauses (4) and (4A) of Article 16 do not confer a fundamental right on the classes for whom reservation is provided or is sought to be provided.

(ii) Clause (4) of Article 16 is discretionary. The S.Cs and S.Ts, and also the B.Cs, cannot claim reservation as a fundamental right. It is a matter of the states discretion to provide or not to provide reservation. Similarly, Clause (4A) of Article 16 is also discretionary and the S.Cs and S.Ts cannot claim reservation in promotion as a fundamental right as it is a matter of the states discretion.

(iii) If the state considers it necessary to provide reservation, including reservation in promotion, it must show by data that the following conditions for exercising the discretion exist:

(c) Inadequate representation in the services.

The court has also laid down the following conditions:

(e) Efficiency of administration required by Article 335 should not be compromised;

(f) 50 per cent limit should not be breached; and

(g) Reservation should not be extended indefinitely.

The Nagaraj judgment laid down these conditions in a case pertaining only to the S.Cs and S.Ts, while upholding the constitutional validity of the 77th amendment and three other amendments pertaining to the S.Cs and S.Ts. For the S.Cs and S.Ts, the conditions mentioned in the Nagaraj judgment and relied on in the U.P. Power Corporation Ltd case do not apply.

The nine-judge Bench in the Mandal judgment (1992) elaborated this concept in the context of the B.Cs, and specifically laid down that creamy layer does not apply to the S.Cs and S.Ts. Yet, this was mentioned as a condition in the five-judge Nagaraj Bench although the Nagaraj case was about the S.Cs and S.Ts and not the B.Cs. As Honorary Adviser to the Ministry of Human Resource Development to help in defending the Central Educational Institutions (Reservation in Admissions) Act in the Ashoka Kumar Thakur case between 2006 and 2008, I had suggested to the then Solicitor General of India, then Additional Solicitor General and Special Counsel that creamy layer did not apply to the S.Cs and S.Ts. They agreed with me and pointed it out to the Supreme Court Bench in that case. The Supreme Court held accordingly.

The S.Cs and S.Ts were identified not on the basis of the criterion of backwardness, that is, social and educational backwardness, but on the basis of subjection to the centuries-old evil of untouchability. In the Indian context, untouchability is not merely what the term literally indicates. It has much wider ramifications, including deprivation of the S.Cs in various fields of life economic, occupational and educational. The S.Ts were identified on the basis of various tribal characteristics, such as their distinct identities and cultures and their vulnerable isolation. It is only in the case of the B.Cs that social and educational backwardness was the criterion; in their case such backwardness has to be shown to exist. There has been a mix-up between the S.Cs and S.Ts, on the one side, and the B.Cs, on the other, and concepts relevant to one have been applied to the other.

The criterion of inadequate representation does not apply to the S.Cs and S.Ts in promotion because the finding that the S.Cs and S.Ts are inadequately represented in government services is constitutionally built into Article 16(4A). This will be clear from a careful reading of the wording of Clause (4) and of Clause (4A) of Article 16. Clause (4) provides reservation 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.

Compare this with the wording of the corresponding words in Clause (4A) of Article 16. Clause (4A) provides reservation in promotion for the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the state.

The wording in Clause (4) implies that there may be some socially and educationally backward classes of citizens who are adequately represented and some who are not. The wording of (4A) clearly means that the state has formed the opinion that the S.Cs and S.Ts are not adequately represented. The words any which in 16(4) and the only word which in 16(4A) are of great significance in underlining the difference between the two.

In view of this, in the context of 16(4A), the burden of proving that the S.Cs or the S.Ts are adequately represented should fall on those who challenge the provision of reservation in promotion for the S.Cs and S.Ts. It is not constitutionally correct to require any government to show that they are inadequately represented. The low representation of the S.Cs and S.Ts in posts to which reservation in promotion applies is patent and notorious.

This efficiency factor has been laid down on the basis of Article 335, as though that is the main clause and purport. The wording of that Article makes it clear that it is not correct.

The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts.

The principal clause in this Article is the claims of the members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration. The words consistently with the maintenance of efficiency of administration is not even a clause; it is only a subordinate phrase. Ironically, this constitutional mandate has been dealt with in such a way that the subordinate phrase is treated as the principal clause and the principal clause as a subordinate clause. Further, the phrase consistently with have been treated as an equivalent of subject to.

The crux of this Article, which has not received due attention and consideration of judgments, is the mandate on the state to take into account the claims of the S.Cs and S.Ts in appointments. What the S.Cs and S.Ts have in relation to appointments is claims. This is the true constitutional source of reservation for the S.Cs and S.Ts in appointments to services and posts. It is an unalloyed and undiluted mandate. The subordinate phrase regarding maintenance of efficiency only means that without diluting the claims, training and orientation programmes should be organised by the governments for the S.Cs and S.Ts, where necessary, and also for others. Such programmes are needed especially to change the mindsets of some people of the other categories and their treatment of the S.Cs and S.Ts, which is not conducive to maintenance of efficiency.

Efficiency of administration and governance should be understood essentially as meaning the ability to expeditiously resolve problems or contribute to the resolution of problems faced by the people in general and particularly people who suffer from any form or degree of deprivation. By this standard, administration and governance in India have been notoriously lacking in efficiency, notwithstanding the presence of a number of sincere individuals in it, since the shadow of a single S.C., S.T. or a B.C. fell on it. It has nothing to do with reservation. The cause is much deeper and systemic. The remedy for it is not hampering reservation but systemic correctives.

The concept of compelling reasons is rooted in American jurisprudence. It should not be insisted on in India where there is a presumption that a law passed by the State legislature or Parliament is constitutionally valid unless it is found to be constitutionally not valid at the end of the proceedings in High Courts and Supreme Court. Further, the Constitution of India mandates social equality and social justice, including reservation, unlike the American Constitution. On account of the absence of the mandate of social equality and social justice, including reservation, in the American Constitution, American jurisprudence has evolved concepts such as suspect legislation, compelling reasons, strict scrutiny, narrow-tailoring and affirmative action, while examining provisions made by individual universities or other agencies giving a helping hand to Afro-Americans and Amerindians. The irrelevance and non-applicability of these American jurisprudential concepts to the Indian constitutional context was well-argued by the then Solicitor General G.E. Vahanvati (now Attorney General) and the then Additional Solicitor General Gopal Subramanium extensively in the Central Educational Institutions (Reservation in Admissions) case, 2008.

In a book released recently, I have dealt with the difference between the Indian and U.S. constitutional histories, the Constitutions and the inapplicability of the U.S. concepts in India, and how the Indian Constitution mandates the path for the Indian state, including the judiciary (P.S. Krishnan, Indian Social Justice versus American Affirmative Action and the Case of Higher Education. Equalizing Access: Affirmative Action in Higher Education in India, United States, and South Africa; Hasan, Zoya and Nussbaum, Martha C. (eds). Oxford University Press, New Delhi, 2012. pages 71-88).

The American jurisprudential concepts have been held by the Supreme Court of India to be irrelevant to the Indian constitutional context in case after case, and finally in the Saurab Chauduri and Central Educational Institutions (Reservation in Admissions) case. Yet, these concepts, including compelling reasons, have popped up again and again.

This appeared first in the Balaji case (1963) and was spelt out in the Mandal judgment not as a judicial prescription but as a limit emerging from the Mandal judgments analysis of the relevant constitutional provisions. This has now been referred to in the S.C. and S.T. reservation in promotion cases and in the Nagaraj case even though there is no possibility of reaching anywhere near 50 per cent under Article 16(4A) because reservation in promotion is only for the S.Cs and S.Ts. At the Central level, this reservation is currently 15 per cent and 7.5 per cent unlike direct recruitment, in which the reservation for the B.Cs is 27 per cent.

Even if the present percentage of reservation in promotion for the S.Cs and S.Ts is raised by the government through an Executive Order or through a piece of legislation in terms of Articles 16(4A) to their population-equivalent proportion, a long overdue but neglected move by the government, there is absolutely no danger of breaching or even reaching the 50 per cent limit. The present population-equivalent proportion for the S.Cs and S.Ts (on the basis of the 2001 Census) is 16.4 per cent and 8.2 per cent respectively. Therefore, the laying down of this condition in the context of reservation in promotion for the S.Cs and S.Ts is out of place.

The judgments rightly take equality under Article 16(1) as a basic feature of the Constitution and part of the basic structure of the Constitution, but this status of basic feature and basic structure is not recognised in such a way as to encompass social equality and social justice, including reservation. Social equality means equality for social classes that have been the victims of Indias traditional social system, and have been neglected in all parameters and in all fields the economy, occupation, education at all levels, housing-and-residence-related needs and health-nutrition-child survival-related needs in comparison to the Socially Advanced Castes (SACs), or non-S.C., non-S.T., non-B.C. castes (NSCSTBCs).

This has to be achieved through a number of comprehensive, integrated and holistic social justice measures not affirmative action measures of which one but not the only one is reservation. Only then can the constitutional mandate of equality be achieved. Therefore, social equality and social justice are basic features and part of the basic structure of the Constitution.

Constitutional amendments are required to remove the scope for such confusion and to reduce the government lawyers need to depend on the knowledge and interests of the departmental officers who have to provide them comprehensive social and socio-historical inputs that help them argue effectively before the court.

This was the basis of the success of the state in the Mandal case and the Central Educational Institutions (Reservation in Admissions) case. It is, therefore, necessary in the present context to have constitutional amendments spelling out these issues so that they are visible on the face of it to officers, lawyers and judges.

Keeping this in view, I have drafted and circulated to the Ministers concerned the Union Ministers for Law, Social Justice and Tribal Affairs and Minister of State in the Prime Ministers Office some draft constitutional amendments with brief justifications. I have also sent them to the Prime Minister and leaders of major political parties and discussed my proposal with some of them.

(i) Reword the Article providing reservation in promotion and also the Article providing reservation in direct recruitment in mandatory terms by substituting the phrasing now nothing in this article shall prevent the State from making any provision reservation with the following words notwithstanding anything in this article the State shall make provision for reservation.

(ii) Spell out the correct criterion of identification of the S.Cs, namely, untouchability and its ramifications, and the S.Ts, namely, isolation under vulnerable tribal conditions.

(iii) Meet the oft-repeated observations of the courts that reservation is not to be extended indefinitely by prescribing that the State shall provide reservation (in promotion as well as direct recruitment in separate Articles) until the representation of the S.Cs and S.Ts at all levels of services in each cadre reaches the population-equivalent proportion; until the State enables the S.Cs and S.Ts to become capable, through open competition, of maintaining that level of representation; and until untouchability and vulnerable tribal isolation and their consequences completely disappear and the S.Cs and S.Ts reach the level of equality with the SACs or the NSCSTBCs in all parameters of development and welfare. Until then such reservation in promotion (also in direct recruitment by a separate Article) shall be the fundamental right of the S.Cs and S.Ts.

(iv) Delete the subordinate phrase regarding efficiency in Article 335 and substitute it by an explanation spelling out the meaning of efficiency as mentioned above.

(v) Separate the provisions for reservation in direct recruitment for the S.Cs, the S.Ts and the B.Cs under Article 16(4) to avoid the type of confusion that has been occurring often.

(a) Spell out the meaning of the criterion of social backwardness as low position in the traditional caste hierarchy and as linkage with traditional occupations considered to be lowly;

(b) Reword it as mandatory and as a fundamental right for the B.Cs until reservation for the B.Cs in the services in each cadre reaches the percentage of reservation fixed for them and until they are enabled through open competition to maintain the same level and until their social and educational backwardness comes to an end and they reach the level of equality with the SACs/NSCSTBCs in all parameters of development and welfare.

(vii) Similar amendments are also proposed in Article 15(4) and 15(5).

(viii) Insert a new Article explaining the meaning of social equality and social justice and laying down that they shall be recognised as basic features and part of the basic structure of the Constitution.

At the all-party meeting held on August 21, all parties supported constitutional amendments for protection of reservation in promotion for the S.Cs and S.Ts except one party, which inter alia wanted reservation for the B.Cs also.

Tying up this new provision with the provision for the S.Cs and S.Ts will harm the latter without benefiting the former. The issue of reservation in promotion for the B.Cs should be taken up separately, examining all its aspects. It would be wise and fair for that not to put any hurdle in the way of the S.Cs and S.Ts.

It is for the government to move the Bill incorporating the above constitutional amendments quickly and get it passed in both Houses of Parliament in the monsoon session itself and avoid the odium of delaying it.

P.S. Krishnan is a retired Secretary, Government of India.