Day 3 Oral Hearings – ClarificationsReservation in Promotion
October 7th 2021
On October 7th 2021, a three-judge bench comprising Justices Nageswara Rao, Sanjiv Khanna and B.R. Gavai heard 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, and for the second hearing click here.
In this hearing, the Court continued hearing Senior Advocate Gopal Sankaranarayanan. The Court also heard Senior Advocate Ranka Mukherjee, who appeared for the State of Tripura and Senior Advocate Dinesh Dwivedi.
Reservation in Promotions Must Have an End Date: Sankaranarayanan
Senior Advocate Gopal Sankaranarayanan began by asserting that the ‘inadequate representation’ standard does not require the government to show that SC/STs should be proportionately represented in services. While Article 16 (4A) uses the phrase ‘adequately represented,’ Articles 330(3) and 332(3) provides for proportional electoral representation for the SC/STs. Hence, these are different standards and this is acknowledged in Indra Sawhney (1992). Hence, reservations in promotions need not be proportional to the population – instead he suggested that it should be less than half the proportion of the population.
By reading Article 16(4) and 16(4A), which does not mention any time limit on reservations in public employment, with Article 334, which places a time limit on reservation in legislatures, he urged that an implicit time limit on reservations in promotions should be inferred. Finally, he submitted that the National Commissions for Scheduled Castes and Scheduled Tribes must periodically review the list of SC/STs so that a few communities do not take a lion’s share of the reservation.
SC/ST Proportion of Population is a Factor in Determining Inadequacy: Mukherjee
Senior Advocate Ranka Mukherjee appearing for the State of Tripura adopted Attorney General Venugopal and Senior Advocate Indira Jaising’s arguments made on the 2nd day of arguments. Mukherjee suggested that Sankaranarayanan had conflated reservations in public employment in Article 16 with electoral reservations in Articles 330 and 332. Hence, the differential use of the words ‘adequate’ and ‘proportionate’ should not lead to the conclusion that ‘inadequacy’ cannot mean proportional to the population.
Rao J said one of the main issues was whether SC/ST people who got unreserved seats should be counted to determine adequate representation. Mukherjee responded that the State of Tripura had a roster system, implying that this addressed the issue. On comparing inadequacy to the population, Rao J asked whether the proportion of the population can be one of the factors, and not the only one. Mukherjee agreed.
Judiciary Need Not Closely Scrutinise Data: Dwivedi
Senior Advocate Dinesh Dwivedi, appearing for SC/ST persons in Odisha, argued that the decisions upholding reservations in promotions (like Pavitra-II) can apply retrospectively from 2001. This was the year in which the 85th Constitutional Amendment Act, 2001 permitted reservations in promotions. Allowing reservations to have retrospective effect from this date was valid since States can presume that reservations in promotions are permissible after the Amendment.
Dwivedi further submitted that inadequate representation should not be analysed cadre-wise: it would lead to chaos. Instead, it should be done across the service of the State/Union or per Group. Further, he said that if the state was satisfied that there was inadequate representation, the judiciary should not closely scrutinise data justifying reservations as set out in Barium Chemicals (1992). This view was affirmed in the context of reservation in Indra Sawhney and Pavitra-II (2019) and contrary to what Dhavan and Sankaranarayanan asserted on the second day.
The next hearing will take place after the Court’s Dussehra vacations, most likely on October 21st (Thursday).