Underlining that quota for Scheduled Castes and Scheduled Tribes is “not at odds with the principle of meritocracy” and is “true fulfilment of effective and substantive equality by accounting for the structural conditions into which people are born”, the Supreme Court, in a landmark ruling Friday, upheld the constitutional validity of a 2018 Karnataka law granting consequential seniority to government servants promoted on the basis of reservation.
A bench of Justices U U Lalit and D Y Chandrachud, while upholding the validity of the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act, 2018, said it “has cured the deficiency” on account of which a 2002 law on reservation in promotions had been quashed in 2017.
The “deficiency” referred to was the lack of an exercise to determine and collect quantifiable data on inadequacy of representation, backwardness and the impact on overall efficiency before the law was enacted, as mandated by the Supreme Court’s 2006 judgment in M Nagaraj vs Union of India.
The 2018 law protects consequential seniority from April 24, 1978. The Karnataka legislature enacted the 2018 law after the Supreme Court invalidated the 2002 Act in B K Pavitra vs Union of India (B K Pavitra 1). Striking down the 2002 law in 2017, the Supreme Court had said that Sections 3 and 4 of the Act were ultra vires of Articles 14 and 16 of the Constitution on the ground that the exercise mandated in the Nagaraj judgment had not been carried out.
Why this is significant
This Supreme Court order is significant because it underlines “a ‘meritorious’ candidate is not merely one who is ‘talented ‘or ‘successful’ but also one whose appointment fulfils the constitutional goals of uplifting members of the SCs and STs and ensuring a diverse and representative administration”.
In its order Friday, the court, referring to the 1995 judgment of a Constitution Bench in R K Sabharwal vs State of Punjab, said “consequently, it is open to the State to make reservation in promotion for SCs and STs proportionate to their representation in the general population”.
Writing for the bench, Justice Chandrachud said “…the providing of reservation for SCs and STs is not at odds with the principle of meritocracy. Merit must not be limited to narrow and inflexible criteria such as one’s rank in a standardised exam, but rather must flow from the actions a society seeks to reward, including the promotion of equality in society and diversity in public administration.”
Observing that “the core of the present case is based on the constitutional content of equality”, the bench said: “The Constitution is a transformative document. The realization of its transformative potential rests ultimately in its ability to breathe life and meaning into its abstract concepts. For, above all, the Constitution was intended by its draftspersons to be a significant instrument of bringing about social change in a caste-based feudal society witnessed by centuries of oppression of and discrimination against the marginalised. As our constitutional jurisprudence has evolved, the realisation of the transformative potential of the Constitution has been founded on the evolution of equality, away from its formal underpinnings to its substantive potential.”
“Article 335 recognises that special measures need to be adopted for considering the claims of SCs and STs in order to bring them to a level-playing field. Centuries of discrimination and prejudice suffered by the SCs and STs in a feudal, caste-oriented societal structure poses real barriers of access to opportunity. The proviso contains a realistic recognition that unless special measures are adopted for the SCs and STs, the mandate of the Constitution for the consideration of their claim to appointment will remain illusory.”
“The proviso, in other words, is an aid of fostering the real and substantive right to equality to the SCs and STs. It protects the authority of the Union and the States to adopt any of these special measures, to effectuate a realistic (as opposed to a formal) consideration of their claims to appointment in services and posts under the Union and the states. The proviso is not a qualification to the substantive part of Article 335 but it embodies a substantive effort to realise substantive equality. The proviso also emphasises that the need to maintain the efficiency of administration cannot be construed as a fetter on adopting these special measures designed to uplift and protect the welfare of the SCs and STs,” the bench said.
“Efficiency of administration in the affairs of the Union or of a State must be defined in an inclusive sense, where diverse segments of society find representation as a true aspiration of governance by and for the people. If, as we hold, the Constitution mandates realisation of substantive equality in the engagement of the fundamental rights with the directive principles, inclusion together with the recognition of the plurality and diversity of the nation constitutes a valid constitutional basis for defining efficiency.”
“Our benchmarks will define our outcomes. If this benchmark of efficiency is grounded in exclusion, it will produce a pattern of governance which is skewed against the marginalised. If this benchmark of efficiency is grounded in equal access, our outcomes will reflect the commitment of the Constitution to produce a just social order. Otherwise, our past will haunt the inability of our society to move away from being deeply unequal to one which is founded on liberty and fraternity,” it said, adding “establishing the position of the SCs and STs as worthy participants in affairs of governance is intrinsic to an equal citizenship”.
The bench said: “Following the decision in B K Pavitra I, the State government duly carried out the exercise of collating and analysing data on the compelling factors adverted to by the Constitution Bench in Nagaraj. The Reservation Act 2018 has cured the deficiency which was noticed by B K Pavitra I in respect of the Reservation Act 2002. The Reservation Act 2018 does not amount to a usurpation of judicial power by the state legislature… The Reservation Act 2018 is a valid exercise of the enabling power conferred by Article 16 (4A) of the Constitution.”
In its landmark 1992 decision in Indra Sawhney vs Union of India, the Supreme Court had held that reservations under Article 16(4) could only be provided at the time of entry into government service but not in matters of promotion. It added that the principle would operate only prospectively and not affect promotions already made and that reservation already provided in promotions shall continue in operation for a period of five years from the date of the judgment. It also ruled that the creamy layer can be and must be excluded.
On June 17, 1995, Parliament, acting in its constituent capacity, adopted the seventy-seventh amendment by which clause (4A) was inserted into Article 16 to enable reservation to be made in promotion for SCs and STs. The validity of the seventy-seventh and eighty-fifth amendments to the Constitution and of the legislation enacted in pursuance of those amendments was challenged before the Supreme Court in the Nagaraj case.
Upholding the validity of Article 16 (4A), the court then said that it is an enabling provision. “The State is not bound to make reservation for the SCs and STs in promotions. But, if it seeks to do so, it must collect quantifiable data on three facets — the backwardness of the class; the inadequacy of the representation of that class in public employment; and the general efficiency of service as mandated by Article 335 would not be affected”.
The court ruled that the constitutional amendments do not abrogate the fundamentals of equality.
Following the Supreme Court decision in B K Pavitra I, the Karnataka government, on March 22, 2017, constituted the Ratna Prabha Committee headed by the state Additional Chief Secretary “to submit a report on the backwardness and inadequacy of representation of SCs and STs in the State Civil Services and the impact of reservation on overall administrative efficiency in the State of Karnataka”.
The Ratna Prabha Committee submitted a report on May 5, 2017 which became the basis of the 2018 state law.