Reservation in Promotion Day #4: Union Argues that Assessing Backwardness of SC/STs is Essential

August 29th, 2018 

In this hearing, the Supreme Court’s 2006 Nagaraj judgement is under review. On the one hand, Nagaraj held that reservations for SCs/STs in the public sector can be extended to include promotions. On the other hand, Nagaraj made it difficult for employers to grant such reservations, by putting in place three controlling criteria.

Mr. Rajeev Dhavan, opposing a review of Nagaraj, began arguments. He argued that any reservation policy must aim to be reasonable. Meaning, a reservation policy should aim to achieve equality and administrative efficiency.

Mr. Dhavan praised Nagaraj for requiring reservation in promotion to meet the test of ‘reasonableness’. Nagaraj achieves in making reservation in promotion reasonable by setting in place three controlling conditions, he argued.

The three controlling conditions to be met for a SC/ST to be granted reservation in promotion are:

• The employer must assess the SC/ST to be backward at the time of the promotion
•  The SC/ST must have inadequate representation in the relevant position at the time of the promotion
• The reservation must aim to achieve administrative efficiency.

Justice Chandrachud enquired if reservation in promotion can be extended to senior administrative roles, where SCs/STs are clearly under-represented. Mr. Dhavan responded by once again pointing to the three criteria. In particular, he drew attention to the first two criteria: backwardness and inadequate representation.

Note how Mr. Dhavan implicitly challenges the claim that SCs/STs are perpetually backward, put forward in the Court’s Indra Sawhney judgement. Mr. Dhavan ties reasonableness to the reassessment of a SC/ST’s backwardness. Thereby, he suggests that it is unreasonable to assume a SC/ST is perpetually backward.

Mr. Dhavan, drawing on the basic structure doctrine, pointed out that equality is a basic feature of the Constitution, alluding to Justice Chandrachud’s opinion in NGT v UOI. Mr. Dhavan argued any reservation policy must aim to be reasonable, so as to not violate the basic feature of equality.

He continued, drawing the Court’s attention to the ‘Identity’ and ‘Width’ tests. These tests are used to assess whether a constitutional amendment damages the basic structure of the Constitution. Mr. Dhavan argued that invalidating the Nagaraj controlling conditions would cause reservation in promotion to fail the Identity and Width tests. Recall that reservation in promotion was introduced by amendments to Article 16.

Next, Mr. Dhavan analyzed the text of  Article 16(4A), which provides for reservation in promotion. The Article starts with a “Notwithstanding” clause. The “Notwithstanding” clause suggests that SCs/STs could be granted reservation in promotion without meeting the three Nagaraj criteria. Mr. Dhavan argued that despite the clause, the State must nevertheless demonstrate the three criteria. The State would violate the right to equality under Article 14, if it failed to demonstrate that one group was backward and under-represented relative to another group.

The bench broke for lunch. The bench reassembled at 2 P.M.

Mr. Rajeev Dhavan challenged the Supreme Court’s ruling in Indra Sawhney that perpetual backwardness ought to be assumed for SCs. In Indra Sawhney, the Court held that SCs, unlike OCBs, suffer perpetual backwardness, even if they make substantial economic gains. Mr. Dhavan disagreed and argued that assessing a SC’s backwardness is an essential requirement for extending reservation in promotion to it.

He alluded to the opinion of Justice S.B. Sinha in E.V. Chinnaiah. Mr. Dhavan wanted to emphasise that there is no constitutional bar on excluding individuals of a group when they are no longer backward.

He concluded by saying that there needs to be a bigger debate on how effective reservations have been in tackling backwardness. He remarked, any attempt to uplift one community should not be at the expense of all other communities, as this would violate the right to equality.

Next Mr. Rakesh Dwivedi, also arguing against reviewing Nagaraj, began arguments. He argued that under Article 341, SCs are ‘deemed’ to be backward, hence allowing them to be subject to further enquiry on their backwardness. Justice Nariman rebutted that under Article 341, Scheduled Castes are the most backward and not just ‘deemed’ backward.

Mr. Dwivedi asked the court to adopt different yardsticks for measuring ‘backwardness’ in reservation in appointment and measuring it in reservation in promotion.

Mr. Dwivedi argued that unlike reservation in appointment, reservation in promotion cannot be claimed just on the basis of membership to a backward group. For reservation in promotion, backwardness needs to be demonstrated when the promotion occurs.  He said that the presumption of backwardness cannot continue at all levels of a person’s employment.

Mr. Dwivedi submitted that backwardness should be tested with respect to a particular class of employees. Mr. Dwivedi holds that the State should assign different degrees of backwardness to cadres themselves.

He extended this argument to representation condition, arguing that adequate representation ought to be calculated at a cadre level and not in proportion to SCs/STs state-wise population.

He concluded by saying that beyond the test of backwardness and inadequate representation, efficiency of service is the most important condition that reservations ought to be judged against.

The matter will be heard again on August 30th, 2018.

(The Report relies on inputs from Ms. Anu Shrivastava and Mr. Abhishek Sankritik)