PROF. SATYA NARAYAN MISRA in Bhubaneswar, February 17, 2022: Two Supreme Court judgements recently have examined the validity of reservation in promotion for SC & ST and 10% reservation for economically weaker sections of the society. It may be recalled that in the famous Indra Sawhney case (1992), the Supreme Court had agreed with the Mandal commission report to grant 27% reservation to the OBC.

The Court did not allow any reservation for promotion, advised the government to exclude the creamy layer from consideration of reservation and abide by a ceiling of 50% for reservation. In response to this judgement, the government introduced article 16(4)-A in the Constitution in 1995 which provided for reservation on promotion to SC ST, if their representation is not adequate.

The government went one step further in 2001 by introducing 16(4)-B which permitted the carry over vacancies to go beyond 50%. These amendments were challenged in the Supreme Court. In the Nagraj case (2008) the Supreme Court agreed with the amendments introduced. However, it put a caveat that reservation in promotion will be subject to proving backwardness and adequacy of representation.

The Karnataka government had appointed the Ratna Prabha Committee to carry out this exercise. The committee had brought out in 2018 that in both group A and group B the actual representation of scheduled caste was around 10.65% and 9.8% as against the stipulated requirement of 16%. In case scheduled tribe the actual percentage of post held was 2.9% for Group A and 2.3 % for Group B as against a 7% quota for the Scheduled Tribes.

When the Karnataka government notified its intent to implement reservation in promotion it was challenged in the Supreme Court. The Supreme Court in Jarnail Singh Vs Gupta case (2022) has nullified the requirement for collecting quantifiable data for proving backwardness amongst ST SC to consider reservation in promotion. However, it has advised the government. to give effect to reservation in promotion on a prospective basis. This has understandably created chagrin, as it will further limit chances of promotion of employees in the general category.

The more contentious decision has been given by Justice D Y Chandrachud in the Neil Aurelia Nunes Vs Union of India case (2021) where the judge believes that reservation would lead to substantive equality. He does not believe that reservation provided in Art 15(4) and 16(4) is an exception to equality principle of Art 15(1) & 16(1), but facets of them which seek to redress historical disadvantage suffered by certain communities like SC & ST.

He quotes Allan Blake judgement (1978) in the US where the majority of Supreme court judges upheld special admission program for the blacks on the grounds that the dictum that “all men are created equal” is untrue, just as “law to be colour blind” is an aspiration. The Judges believed that barriers that faced by the blacks, as also their potential justify a special admission process.

He quotes Prof. Mark Galanter who had identified three kinds of resources required for merit viz economic resources, socio cultural resources and intrinsic ability and hard work. Justice Chandrachud believes that SC and STs suffer from the two first two criteria and therefore it is necessary to redress them by giving reservation at all stages to these deprived sections of the society to undo the deprivations that confront them in the matter of admission to educational institution and public employment. He goes further by observing that high scores in examinations are not a proxy for merit and that open competitive examinations do not reflect the socio economic and cultural advantage that accrue to such class.

It would be interesting to note that several judges and scholars have brought out the perils of not considering merit and open competition for appointment to government. posts. Justice Krishna Iyer had observed in 1976 “to devalue merit at the summit is to temporise with country’s development in vital areas of professional expertise”.

In the Indra Shawy case the court had observed that the reservation should be excluded in higher echelon posts. In the Binod Kumar case (1996) the court had observed that the standards should not be loosened for public employment. Field Marshal Karriapa had also opposed reservation in the defence services because of which recruitment in to the armed forces does permit reservation.

The famous political scientist Prof. Dworkin had observed that “the government must not distribute goods unequally on the ground that some citizens are not entitled to more because they are worthy of more concern”. This is fitting riposte to Justice Chandrachud’s diatribe against the advantaged people in general category enjoy.

The Original Indian Constitution transcended caste. It’s indeed sad that in a liberal democracy like India, where competition and merit should be the leitmotif for economic efficiency after economic liberalization in 1990, the Court is promoting reservation and approving loosening of standards for public appointment of SC/ST by amending Art 335 at the cost of merit.

What India needs is strong affirmative action in areas like quality foundation education, basic health care, proper nutrition for all the disadvantaged sections of the Indian society. We must not exclude those in the general category who are economically highly disadvantaged.

The General Sinho Committee (2010) had observed that nearly 18.7% in GC were below the poverty line and close to 1 crore family were poor and 28% illiterate. Therefore the Government initiative to provide 10% reservation to ESW in the general caste category is fair as opposed the Mandal Commission criteria to judge backwardness through the lens of social, economic and education deprivation.

India’s lamentable record in terms of malnutrition (38% children stunted), more than 50% girls being anaemic, and poor quality of education dished out to children in public schools transcends caste and afflicts the GC as well. The quest for social justice has degenerated in to political opportunity.

The way forward India is not to perpetuate caste and class reservation but to ensure inclusive growth through focussed attention to development programmes and providing equal opportunities to all sections of the society to have good education, healthcare, nutrition and digital empowerment.