On September 28th, the Court refused to provide further clarifications on how reservations in promotions for persons with disability (PwDs) should be implemented. The Court will soon hear arguments on how reservations in promotions for Scheduled Castes and Scheduled Tribes (SC/STs) should be implemented. Is it likely that the Court will sustain the two divergent legal standards for reservations in promotion depending on who the beneficiaries are?
Article 16 of the Constitution of India, 1950 provides for equality of opportunity in public employment. Article 16(1) expressly assures ‘equality of opportunity’ for all citizens in public employment. The Supreme Court has interpreted this clause to allow the state to give preferential treatment to a group of persons,
Article 16(4) goes further to expressly permit the state to provide reservations for ‘any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.’ Currently, reservations under Article 16(4) are primarily on the basis of caste. They are provided to persons belonging to Scheduled Caste/Scheduled Tribes (SC/STs), and Other Backward Classes (OBCs) identified based on social factors such as caste and education.
Reservations in public employment under Article 16(1) [for PwD] and Article 16(4) [for SC/STs] have been treated differently by the Supreme Court.
In Indra Sawhney v Union of India (1992), when discussing reservations under 16(4), the Court held that reservations in promotions were not permitted on the grounds that it increased the ‘risk’ of inefficient administration. This meant that any reservations provided for SC/STs or OBCs would not apply to promotions.
In Rajeev Kumar Gupta v Union of India (2016), the Court decided whether this rule applied to reservations for PwDs. The Court highlighted that any reservations granted to PwDs was under the general aim of Article 16(1) of granting ‘equality of opportunity’. It held that reservations under Article 16(1) could be granted as long as the considerations for recognising them are not those listed in Article 16(2). This includes the grounds of ‘religion, race, caste, sex, descent, place of birth, residence’.
The Court noted that in Indra Sawhney, when the Court made the ‘no reservation in promotion’ rule, they were only looking at reservations for ‘backward classes’ under 16(4). PwDs did not fall under that classification, because these reservations were not based on their social vulnerabilities. Since ‘physical disability’ was the criteria for reservations for persons with disability, it came under the purview of 16(1), where the focus is to provide equal opportunity for all.
In January 2020, this issue came up before the SC once again in Siddaraju v State of Karnataka. The SC reiterated Rajeev Kumar. On September 29th 2020, the Union government filed a miscellaneous application before the SC seeking clarifications on how reservations in promotions for PwDs should be implemented. They argued that Siddaraju did not clarify whether reservations in promotions were meant to be applied across all levels of public employment. This application signals a discordant understanding on how reservations for PwDs must be implemented for promotions.
[ More on Siddaraju ]