Responding to the government’s complaint that promotions were at a “standstill” because of verdicts by the High Courts of Delhi, Bombay, and Punjab & Haryana, the Supreme Court said Tuesday the government was “not debarred” from making promotions so long as they were “in accordance with the law”. While the court did not specify which law it was referring to, the law that currently applies is the one laid down by the five-judge Bench of Chief Justice of India Y K Sabharwal and Justices K G Balakrishnan, S H Kapadia, C K Thakker and P K Balasubramanyan in M Nagaraj & Others vs Union Of India & Others (October 19, 2006). The court dealt with a challenge to constitutional amendments aimed at nullifying the impact of judgments including that in the famous Mandal case, on reservations in promotions for Scheduled Caste and Scheduled Tribe employees. What is the background of Nagaraj, and what did the court say in its verdict?
Questions before Supreme Court
The petition challenged the constitutional validity of:
* The Constitution (Seventy-Seventh Amendment) Act, 1995, which inserted Clause 4A in Article 16 (equality of opportunity in matters of public employment);
* The Constitution (Eighty-First Amendment) Act, 2000, which inserted Clause 4B in Article 16;
* The Constitution (Eighty-Second Amendment) Act, 2000, which inserted a proviso to Article 335 (claims of SCs and STs to services and posts); and
* The Constitution (Eighty-Fifth Amendment) Act, 2001, which changed the wording of Article 16(4A).
Articles 16(4A) and 16(4B)
The Statement of Objects and Reasons of the 77th Amendment Act noted that quotas in promotions for SCs and STs had been discontinued after the November 16, 1992 judgment in Indra Sawhney and Others vs Union of India and Others (Mandal case), in which the Supreme Court observed that reservation under Article 16(4) — which allows the state to make provisions for “reservation of appointments or posts in favour of any backward class of citizens” — did not apply to promotions. This affected SC and ST employees, and in order to ensure that reservations in promotions continued, Clause 4A was introduced: “Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion… in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.”
Clause 4B was inserted to ensure that while calculating the quota for a particular year — capped at 50% by Indra Sawhney — the unfilled or ‘carried forward’ quota from the earlier year was not clubbed with the regular quota of that year. It said: “Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation… that year.”
The Statement of Objects and Reasons of the 82nd Amendment Act noted that the Supreme Court had, in both Indra Sawhney and S Vinod Kumar And Anr vs Union Of India And Ors (October 1, 1996), ruled that relaxation of qualifying marks and standards of evaluation for reservation in promotion were not permissible under Article 16(4) in view of the command contained in Article 335 (“Claims of SCs/STs shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments…”). To restore the relaxations, the 82nd Amendment added a proviso to Article 335, allowing “relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State”.
The 85th Amendment noted that the SC judgments in Union Of India And Ors Etc vs Virpal Singh Chauhan Etc (October 10, 1995) and Ajit Singh Januja & Ors vs State Of Punjab & Ors (March 1, 1996) had affected the interests of SC/ST employees “in the matter of seniority on promotion to the next higher grade”. The amendment introduced the words “with consequential seniority” after “in matters of promotion” in Article 16(4A) [see above].
The Nagaraj judgment
The petitioners argued that the four amendments were aimed at reversing the judgments in Indra Sawhney and other cases, that Parliament had arrogated to itself judicial powers, and had, therefore, violated the basic structure of the Constitution. The court upheld the constitutional validity of the 77th, 81st, 82nd, and 85th Amendments. It, however, ruled that if the state “wish(ed) to exercise their discretion and make (a) provision (for reservation in promotions for SCs/STs), the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335”. Also, “even if the State has compelling reasons… (it) will have to see that its reservation provision does not… breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely”.