Day 5 Oral Hearings – Clarification

Reservation in Promotion

October 26th 2021

On October 26th 2021, a three-judge bench comprising Justices Nageswara Rao, Sanjiv Khanna and B.R. Gavai concluded hearings for over 130 petitions regarding the implementation of the Court’s decision in M Nagaraj v Union of India (2006) for the third day.

In M Nagaraj (2006), the Court held that State governments had the discretion to provide SC/ST candidates reservations in promotion after fulfilling three conditions: demonstrate that the class is ‘backward’; this class is inadequately represented in the position/service and thirdly, that administrative efficiency must be maintained. In Jarnail Singh v Lacchmi Narain Singh (2018) the first condition was struck down and the second condition was modified to require the government to produce data on under-representation in the specific department.

In these clarification hearings, the petitioners have challenged the reservation in promotion policies in various States for non-compliance with Jarnail Singh – particularly, how States may satisfy the requirements of showing inadequate representation and ensuring administrative efficiency.

In the previous hearings, the Bench directed Attorney General (AG) K.K. Venugopal to submit details of any data collected for reservation in promotions after Nagaraj. The Bench also heard submissions on how the criteria should be understood. For a detailed report of the first hearing click here, for the second hearing click here, for the third hearing click here and for the fourth hearing click here.

Bench Clarifies the Present Hearings are on the Broader Issues of Law

Various advocates, including Rajeev Dhavan, Paramjeet Patwalia, Gupta, Rakesh Dwivedi and Indira Jaising raised some issues specific to their petitions. The Bench clarified that these issues were not before them. Rao J stated that their judgment would only deal with the broader issues. Specific questions would then be addressed based on this judgment when hearing cases individually.

Counsel Make Final Submissions

Sr. Adv. K.S. Chavan argued in favour of a ‘roster’ system, which would automatically ensure the condition of inadequate representation is met, which was approved by the Court in R.K. Sabharwal (1995).Further, he submitted that the Union’s data on adequate representation was inaccurate, because it did not consider the large number of vacancies. Finally, Chavan argued that efficiency would be maintained if promotions were done for reserved categories on the basis of Annual Confidential Reports (ACRs), which indicate an employee’s performance evaluation.

Advocates appearing for reserved categories argued that once a provision was made for reservation, then rights accrue to the SC/ST persons, and must be read favourably. They also argued that SC/ST candidates should not be presumed to be inefficient as stated in B.K. Pavitra-II. Sr. Adv. Rupinder Singh Suri argued that efficiency in Article 335 cannot be understood in a way that it overrides a fundamental right under Article 16 which provides for reservation. Further, he submitted that efficiency is not just about merit but also diversity.

An advocate appearing for an unreserved category candidate argued that when determining adequate representation, SC/ST candidates who had taken seats on ‘merit’ should be counted. Another advocate for an unreserved category candidate argued that M Nagaraj applied three conditions on the 77th Amendment. These conditions did not apply from 2006, but from 1995, when the amendment was enacted.

Mr Dhananjay Garg for the State of Madhya Pradesh pointed out the difficulty in collecting data to prove the conditions in Nagaraj. Sr. Adv. Gopal Sankaranarayanan briefly brought the Court’s attention to Article 371D, to understand the meaning of ‘posts’ and ‘cadre’.

Adequacy of Representation Must be Understood Proportional to the Population: AG

AG Venugopal wrapped up the hearings for the Union. In his reply, he focused on making one main point. He that the condition of ‘inadequate representation’ should be understood to mean when the representation of SC/ST candidates in the services is not proportionate to their share in the population.

In order to support his view, he cited a range of cases, including Akhil Bhartiya Soshit Karamachari Sangh. AG Venugopal submitted it would be wrong to strike down years of precedent and change how States and the Union had done it since 1950. He also argued that Indra Sawhney was not against this idea. There, the Court had distinguished between ‘adequate’ and ‘proportionate’ for OBCs. The reservations in this case were about SC/STs, which could still be proportionate.

On the question of providing ‘quantifiable data’ to prove inadequate representation, AG Venugopal urged the Court to provide a definite ‘yardstick’ In Jarnail Singh, the Court had left it to the State. Venugopal argued that this had led to confusion and difficulty.

The Court wrapped up hearings after ASG Balbir Singh made submissions about the nature of data collected by the Union.

The Court has reserved judgment.