#6 Reservation in Promotion

Jarnail Singh v Lacchmi Narain Gupta

6.1 – Why is reservation in promotion contentious?

Reservation in promotion refers to granting reservations for jobs filled by promotions in public employment to Scheduled Castes and Scheduled Tribes (SC/ST). The core of the disagreement is whether the constitutional reservation mandate applies only at the entry level or at all levels to ensure adequate representation of the SC/ST.

6.2 – Timeline of Key Judgments and Constitutional Amendments

Since the 1990s, the Supreme Court and Parliament have taken different views on the fairness of the policy.

• 1992, Indra Sawhney judgment: Supreme Court finds that reservations do not extend to reservation in promotion.
• 1995-2001, 77th, 81st, 82nd & 85th Amendments to Constitution: Parliament amends the Constitution, undoing Indra Sawhney, extending reservations to reservation in promotion.
• 2006, Nagaraj judgment: The Supreme Court validates Parliament’s constitutional amendments. However, it introduces strict conditions that make it difficult for the State to grant reservations in promotion: current backwardness, inadequate representation & maintainance of efficiency.
• 2018, State of Tripura v Jayanta Chakraborty: The Supreme Court removes one of three strict conditions it introduced in Nagaraj, namely the requirement that the State must prove the “current backwardness” of an SC/ST it grants reservation in promotion to. However, it also introduced a “creamy layer exclusion” requirement.

6.3 – Is proving current backwardness & creamy layer exclusion the same thing?

6.3.1 – Proving current backwardness operates at the group level. It involves the State using data to show the backwardness of a group. In its judgment, the Court removed the proving current backwardness condition in matters of reservation in promotion.

6.3.2 – Creamy layer exclusion operates at the individual level. Creamy layer exclusion entails denying an individual reservation on the basis of high income. In its judgment, the Court established that the principle of “creamy layer exclusion” applies to SCs/STs in matters of reservation in promotion.

6.4 – How was the judgment received?

6.4.1 – Dalit leaders across party lines have criticized the judgment for introducing the creamy layer exclusion principle. They argue that the judgment misunderstands the rationale behind the creamy layer exclusion principle.

6.4.2 – Is a constitutional amendment bill on the cards? The Government has had a history of overturning Supreme Court judgments on sensitive matters pertaining to reservations for SCs/STs. For example, it undid Kashinath Mahajan via a parliamentary amendment to SC/ST (Prevention of Atrocoties) Act after violent protests errupted.

Image credit 1: Jagdeesh Nv, Reuters

6.5 – 5 Things you Must Reads

6.5.1 – Cabinet Minister Ram Vilas Paswan’s interview with the Indian Express expresses concern over the introduction of the creamy layer principle

6.5.2 – Rajeev Dhawan reiterates his arguments in favor of creamy layer exclusion. Dhawan was one of the lawyers in the case.

6.5.3  – Vikram Hegde criticizes the judgment for introducing creamy layer exclusion in The Scroll

6.5.4 – Shyam Babu argues that the judgment misunderstands the different rationale behind reservations for OBCs and those for SCs/STs.

6.5.5 – Rukwini S summarizes Ashwini Desphande’s empirical study on the India Railways, which countered the popular narrative that reservations for SCs/STs hurt efficiency.