On Friday, the Supreme Court overturned a decision of the Uttarakhand High Court last year asking the state government to collect data on the inadequate representation of members of Scheduled Caste and Scheduled Tribe communities in public positions.
The case pertained to reservations in promotions in government jobs. The matter involved two High Court decisions delivered last year. In the High Court, the petitioners had challenged an April 2012 decision of the state government to fill up government positions without reservations for Scheduled Caste and Scheduled Tribes communities.
In its first order, the High Court struck down this decision and said that the state need not collect quantifiable data on “backwardness” to implement quotas for Scheduled Caste and Scheduled Tribe groups. This was because their backwardness was established by the fact that these communities were included in the SC and ST list in the Constitution, which received a Presidential approval after Parliament cleared it. It then asked the government to implement the quotas.
A review petition was filed in High Court, which then modified its April 2019 direction. In the review judgement, the court clarified that the state government was not obligated to provide reservation to any group given that the provision for quotas under Article 16 (4) was an enabling provision that leaves quotas to the discretion of the states.
It said that the state government was obligated to collect data on “inadequate representation” of a class before providing reservations and ordered the state to get the data.
An appeal was filed against these judgements in the Supreme Court, which ruled in the case on Friday. On Monday, the Congress and the Dravida Munnetra Kazhagam moved motions in Parliament asking the Centre to remedy the consequences of this judgement. The Communist Party of India (Marxist) in a statement said the judgement undermined the interests of marginalised groups.
Supreme Court’s decision
Before considering Friday’s decision, it is important to note the context of judicial decisions on quotas in the last two decades.
The first major judgement came in 2006 in M Nagaraj and Others vs Union of India. A five-judge bench put in force several restrictions on implementing quotas. These included obtaining quantifiable data on the backwardness of a class, data on inadequacy of representation, the application of the “creamy layer” concept, efficiency in administration and the ceiling of 50% for reservations.
The Nagaraj judgement sparked a controversy because it demanded data on backwardness even for Scheduled Caste and Scheduled Tribe communities. Secondly, Nagaraj applied the creamy layer test to Scheduled Caste and Scheduled Tribe groups, but left the decision on implementing this to Parliament. The creamy layer refers to those members of a backward class who are relatively advanced in the socio-economic hierarchy.
As far as backwardness was concerned, the assumption till Nagaraj was that by virtue of being declared a Scheduled Caste or Scheduled Tribe by Parliament, the backwardness of the groups was assumed to be true. Since backwardness is determined by social and educational factors and not economic factors, this also meant that no division was possible between members these groups using the creamy layer concept.
The Nagaraj case opened a can of worms and led to the judgement in Jarnail Singh vs Lacchmi Narain Gupta in 2018. In this case, the court was called upon to revisit the Nagaraj judgement, with the Centre arguing that the court erred in Nagaraj.
In Jarnail Singh, the court refused to reconsider Nagaraj but modified the judgement on one aspect: It accepted the assumption of backwardness of a group by virtue of being declared Scheduled Caste or Scheduled Tribe and said no data to justify the backwardness was required. However, it upheld the other restrictions imposed by Nagaraj: data on adequate representation in jobs, creamy layer and efficiency in administration.
In both these cases, while the matters pertained to reservation in promotions, the court’s declarations were ambiguous as they did not clearly demarcate the distinction between reservations in initial appointments and quotas in promotions.
How did the court justify these restrictions? The judges held that provisions under Article 16 of the Constitution, which enables the state to provide reservations, had to be read harmoniously. The power of the state to provide for quotas cannot obliterate the equality principle enshrined in Article 14 and Article 16. Hence, there is a need to ensure that groups without quotas are not hurt.
However, after this judgement was delivered, the Centre in 2019 provided reservations for economically weaker sections and breached the 50% limit for reservations. This law is currently under challenge.
On Friday, the Supreme Court cited Nagaraj, Jarnail Singh and several other precedent to reiterate its position on quotas.
In the context of Uttarakhand, it is to be noted that before taking the decision not to provide reservations to Scheduled Caste and Scheduled Tribe groups, the state government had formed a committee to determine the adequacy of their representation in public posts. This committee filed its report in 2012, which established the inadequacy. Despite this, the state decided against giving quotas.
The question before the Supreme Court was whether the state can deny quotas to the Scheduled Caste and Scheduled Tribe groups.
In dealing with this question, the court said since Article 16 (4) is an enabling position that leaves to the discretion of the state the decision on providing quotas, the state was not obligated to provide them. In other words, the Supreme Court held that quotas were not a fundamental right for which it could issue a direction to the state government. In this, it cited a 1967 judgement in CA Rajendran vs Union of India to substantiate its declaration.
This position will hold even in a situation where there is data for inadequate representation of a group.
Problems with decision
There are several problems in the manner in which the Supreme Court has handled the subject of quotas over the last few decades.
In State of Kerala vs NV Thomas delivered in 1975, which came after the 1967 CA Rajendran case, the court held that a harmonious reading of Article 16 provisions would make it clear that the power to provide quotas under Article 16 (4) was not an exception to the equality clause but a facet of it.
That is, by providing quotas and enabling representation for the weaker sections, the state in practice gives a real manifestation of the concept of equality. As long as the classification of groups for the purpose of quotas was reasonable, it would not violate the equality clause.
Constitutional experts like Gautam Bhatia have argued that this harmonious reading of Article 16 provides a right to “substantive equality”. That is, while quotas are not a fundamental right, there is a substantive equality right that creates an obligation for the states to come to the rescue of groups inadequately represented in public jobs.
Though the Supreme Court in the Uttarakhand case reiterated the discretionary powers of the state in Article 16 (4) and referred to the Nagaraj and Jarnail Singh judgements, what is missed is that the court in Nagaraj specifically referred to this obligation of the state to provide reservations. This aspect was not struck down in the subsequent Jarnail Singh judgement which modified Nagaraj. The court in the Nagaraj judgement held:
“Equality has two facets ‘formal equality’ and ‘proportional equality’. Proportional equality is equality ‘in fact’ whereas formal equality is equality “in law”. Formal equality exists in the Rule of Law. In the case of proportional equality the State is expected to take affirmative steps in favour of disadvantaged sections of the society within the framework of liberal democracy. Egalitarian equality is proportional equality.” [Emphasis added]
As a consequence, there is an expectation in the state to assist backward sections through reservations if the groups satisfy the criterion of inadequate representation. In Uttarakhand, the inadequate representation of Scheduled Case and Scheduled Tribe groups was established through data collected by a committee. Yet, the state refused to fulfill its obligation.
It could also be argued that the Scheduled Castes and Scheduled Tribes are a special case as their backwardness is established the moment they are added to the Presidential List by the Parliament. Once a group has been declared as backward, it is illogical to say that the state need not help them or must collect data to determine their inadequate representation. This would mean the categorisation of a group as Scheduled Caste or Scheduled Tribe, which affirms their extreme social and educational backwardness, will remain a mere statement on paper.
The problem, however, is that the Supreme Court has been inconsistent is categorically upholding “proportional equality”.
In the 2018 Jairnail Singh verdict, for example, the court held that the proportionality test has to give way for certain other considerations in the context of promotions. Commenting on the ruling in Nagaraj that left the determination of adequate representation to the executive, the court said:
“According to us, Nagaraj (supra) has wisely left the test for determining adequacy of representation in promotional posts to the States for the simple reason that as the post gets higher, it may be necessary, even if a proportionality test to the population as a whole is taken into account, to reduce the number of Scheduled Castes and Scheduled Tribes in promotional posts, as one goes upwards. This is for the simple reason that efficiency of administration has to be looked at every time promotions are made.”
What this translates into is that even if there is inadequate representation in certain positions, the state can decide against quotas keeping in mind the efficiency of administration. That is, as one goes higher in the government hierarchy, what matters is who will fit a particular role and not what class the person belongs to.
The other problem is also the court’s selective affirmation of the state’s discretionary powers for providing reservations. When it comes to a decision not to provide reservations, the court feels the state has absolute discretion and need not collect data to justify this decision. But when the state wants to provide quotas, the court brings in the concept of equality and places several restrictions that dilute the discretionary power of the state. The 50% ceiling for quotas is an example of this restriction.
In effect, the quota regime itself gets watered down.