Reservations in Public Employment

In Context

• Justice Rohinton Nariman has authored the unanimous judgement given by the Supreme Court on the policy of reservation in Public employment.

Reservation policy of India

• Reservation is a system of affirmative action in India that provides historically disadvantaged groups representation in education, employment and politics.
• A percentage of seats are reserved for the socially and educationally backward classes of citizens or the Scheduled Castes and Tribes who were inadequately represented.

Constitutional Provisions and Subsequent Amendments:

• Article 16 
  • It provides for equality of opportunity for all citizens in matters of employment or appointment to any office under the State. 
  • No citizen can be discriminated against or be ineligible for any employment or office under the State on grounds of only religion, race, caste, sex, descent, place of birth or residence.
  • Exceptions:

• There are three exceptions to this general rule of equality of opportunity in public employment:
  • Parliament can prescribe residence as a condition for certain employment or appointment in a state or union territory or local authority or other authority. 
    • As the Public Employment (Requirement as to Residence) Act of 1957 expired in 1974, there is no such provision for any state except Andhra Pradesh and Telangana.
  • The State can provide for reservation of appointments or posts in favour of any backward class that is not adequately represented in the state services.
  • A law can provide that the incumbent of an office related to a religious or denominational institution or a member of its governing body should belong to the particular religion or denomination.

• Article 16 (4A): 
  • Provides that the State can make any provision for reservation in matters of promotion in favour of the Scheduled Castes and the Scheduled Tribes if they are not adequately represented in the services under the State.
  • It was inserted by the 77th Constitutional Amendment Act, 1995.

• Article 16(4B): 
  • Added by the 81st Constitutional Amendment Act, 2000 which enabled the unfilled SC/ST quota of a particular year to be carried forward to the next year.

• Article 335: 
  • It recognises that special measures need to be adopted for considering the claims of SCs and STs to services and posts, in order to bring them at par.
• 103 Amendment of the Constitution of India:
  • Introduced 10% reservation for Economically Weaker Sections (EWS) of society by amending Article 15 and Article 16 of the Constitution. 
  • It provided for admission to Central Government-run educational institutions and private educational institutions (except for minority educational institutions), and for employment in Central Government jobs.

Is it a fundamental Right?

• It has been stated by the court in multiple cases that there is no fundamental right to reservation or promotion under Article 16 of the Constitution.
  • They are enabling provisions for providing reservation, if the circumstances so warrant.

Previous Cases and Judgments 

• Mandal judgement/ Indra Sawhney case 1992
  • The Constitution does not confer any fundamental right to claim reservation in the matter of promotions in public posts.
  • In the Indra Sawhney Case, the Supreme Court had held that Article 16(4) of the Constitution of India does not authorise reservation in the matter of promotions. 
  • However, if any state wishes to exercise their discretion and make such a provision, the State has to collect quantifiable data showing inadequacy of representation of that class in public services.
    • This inadequacy of representation of Scheduled Castes and Scheduled Tribes in a particular class or classes of posts should not affect general efficiency of administration as mandated by Article 335 of the Constitution.
• Nagraj Case

Arguments in Favour of Policy of Reservation

• Proper Access to Opportunity: 
  • 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.
• Constitutional Mandate: 
  • The Constitution mandates realisation of substantive equality in the engagement of the fundamental rights with the directive principles.
• Special Measures Needed: 
  • 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.
• False Notion of Efficiency: 
  • The Constitution does not define what the framers meant by the phrase efficiency of administration. 
  • It is a stereotypical assumption that the promotees drawn from the SCs and STs are not efficient or that efficiency is reduced by appointing them.

• Representation in Higher Echelons: 
  • The main reason for giving reservations and even promotions is that there are very few SC/ST candidates in the higher echelons of government.

Arguments Against the Policy of Reservation 

• Impact on Efficiency: 
  • Appointment of SCs and STs to services and promotions may make it difficult to maintain the efficiency of administration.
• Redundancy of Reservation: 
  • The SCs and STs are getting the benefits of reservation in the appointments to various servicers. Therefore, it is undesirable and inefficient to provide quota in promotions for key posts.
• Not a Compulsion for Government: 
  • The Constitution empowers the State to make reservation in matters of appointment and promotion in favour of the Scheduled Castes and Scheduled Tribes only “if in the opinion of the State they are not adequately represented in the services of the State”.

• Acting as a divide: 
  • It may act as a barrier between many social classes and castes in the society causing possible unrest.
• The privileged getting more privileged:  
  • Many reports suggest that the reservations are not actually being beneficial to the needy sections of the society but the already privileged ones. 

Way Ahead

• Equality and constitutional reasonableness are basic features of the constitution.
• Positive discrimination as represented in our reservation system can lead to important advances in societies along with deep-seated social inequalities, but that such systems must be periodically examined and redesigned.
• The most obvious reform would be to reduce the number of relatively wealthy beneficiaries. This could be done both by enhancing enforcement of the existing creamy layer system and by refusing to grant reservations to relatively prosperous castes on purely political grounds.
• Creation of sub-categorisation or creating categories within reservation as recently suggested for OBCs.

This would ensure “equitable distribution” of representation among all communities.