May a good source be with you.

13-Point Roster May Be a Beginning of The End of Reservation

The government should bring a bill to restore the university as the unit for faculty reservation.

The Indian constitution as a social document promises social justice and therefore, mandates making of special provisions in favour of those who have been historically discriminated. Due to political and electoral compulsions rather than constitutional promises, successive governments, invariably on the eve of elections, have been coming up with reservation policies. There is thus nothing new in the latest move of 10 per cent reservation for the economically backward communities.  Even a day before the insignificant by-poll in Kairana in 2018, the Prime Minister in his speech at the nearby Bagpat did announce his intention of coming up with suitable reservation policy based on the classification between ‘backward’ and ‘most back backward’ amongst Other Backward Classes. Justice Rohini’s commission is working on this. But a closer look at the judicial response to reservation polices shows that our judiciary has not been quite supportive of such policies and in many cases, it has in fact created obstacles in the implementation of such policies by introducing several exclusions/doctrines/rules etc. Our courts have been emphasising merit and have been concerned about dilution of merit. In several reservation matters, courts have been more interested in protecting the interests of general categories.

Judiciary favours merit

This unfavourable attitude was yet again visible in the dilution of provisions of SC/ST Act by the Supreme Court in March, 2018 by a bench of Justice Goel and Justice Lalit, and the latest rejection of appeal on the ‘department’ instead of ‘university’ being taken as a unit for reservation by a bench of Justice Lalit and Justice Banerjee. In view of the history of such decisions, the nation is eagerly awaiting a judicial response to the challenge to the constitutionality of 103rd constitutional amendment as this time, the beneficiary will be the upper castes. The court, unlike 27 per cent reservation of OBC in 1991, has not stayed the new reservation policy but has issued a notice to the government. In this article, we will examine the judicial response to reservation in the last seven decades.

Also Read:  Casteist Policies Aiming to Eliminate SCs, STs, OBCs From Higher Education: Lalu Prasad Yadav

“No scientific research has so far proved that SC/ST employees are less efficient in performance of their duties.”

At the commencement of constitution itself, in State of Madras v. Dorarirajan (1951) — a case where petitioner Dorarirajan, a Brahmin, had not even applied for admission to medical college — the court struck down the reservation policy of the state which was there from pre-constitution days. On mere enquiry, she came to know that she would not be admitted, though as per reservation policy two seats were indeed reserved and given to more meritorious Brahmin candidates. The decision led to the first constitutional amendment by the Nehru government and the insertion of clause (5) in Article 15, empowering the state to make special provisions for the socially and educationally backward classes of citizens or for the SCs or STs.

(Photo: Twitter: @jigneshmevani80)

50 per cent upper limit

In M.R. Balaji v. State of Mysore (1963), where on the recommendation of Nagan Gowda Committee (1961), only 40 seats were reserved and 60 per cent were kept open, the apex court did make some positive observations such as that the government need not appoint a commission to determine backwardness under Article 340 prior to formulation of reservation policy; executive orders giving reservation are valid; caste is important but not the sole determinant of backwardness and ‘caste’ and ‘class’ are not synonymous. But then, the court also struck down the distinction between ‘backward’ and ‘more backward’ communities and termed the 68 per cent reservation as a ‘fraud’ on the constitutional power conferred on the state by Article 15(4), and said that national interest and interests of that society are to be kept in view while making reservation. It also introduced the strange 50 per cent upper limit for the reservation. This judicial innovation is considered unreasonable by advocates of affirmative action as the country has about 80 per cent backward classes of people and therefore, while for 80 per cent people, only 50 per cent seats are reserved, for the remaining 20 per cent, 50 per cent seats are up for grabs under the so-called ‘general category’. The latest amendment has now reserved 10 per cent out of this 50 per cent for the economically backward communities. The government has strangely justified the move by saying 50 per cent upper limit is only for SC/ST/OBC reservation and since this is a new kind of reservation, the bar of 50 per cent is inapplicable.

Also Read:  RSS’ ‘Dangerous’ Plan is To Remove SC, ST, OBC Reservations Entirely: Jignesh Mewani

Confusion over reservation in promotions

In CA Rajendran (1967), where a governmental policy of November 8, 1963, that did not provide for reservation in ‘promotion’ in class I and class II posts was challenged, a five-judge bench headed by CJ Wanchoo, upholding the policy, said that reservation in both appointments and promotions is merely discretionary rather than the constitutional duty of the state. Thus, a policy against reservation in promotion was considered valid as early as 1967 and this continues to be a hotly-contested issue even today.

Dr Ambedkar

In State of Kerala v. N.M. Thomas (1976), the apex court did extend the benefit of reservation to ‘promotions’. A denial of the second step of ‘promotion’, the court rightly said, would defeat the purpose of socio-economic upliftment. The court here also upheld the two years extended period to pass the special test for the promotion of SC/ST employees. Surprisingly, Justice HR Khanna, widely-acclaimed for his powerful dissent in the famous ADM Jabalpur Case (1976), authored a disappointing minority judgment in which he faulted such an exemption in Kerala Service Rules as being violative of the principle of ‘efficiency’ in the administration. He observed that this kind of preferential treatment is plainly a negation of the equality of opportunity.  He also said that Article 335 does not create any right to reservations.

“Reservation is not  just a mere discretion of the government but an integral part of the constitutional pact that must be honoured”

Carry forward rule

In T. Devdasan (1968), the ‘carry forward’ rule i.e. reserved seats remaining unfilled in one year will be added to the reserved quota of subsequent years, was struck down. In Indira Swahney v. Union of India (1992), where 27 per cent OBC reservation implemented by Prime Minister V.P. Singh on the recommendation of Mandal Commission and 10 per cent reservation for the economically weaker sections introduced by PV Narasimha Rao was challenged, a nine-judge bench authoritatively laid down the law on reservation. The positive findings were that Article 16(4), which enables the state to make reservation in favour of any backward class of citizens, is not an exception to right to equality of opportunity provided under Article 16(1) but an illustration of right to equality of opportunity; a caste can be and quite often is a social class in India; a classification between ‘backward’ and ‘most backward’ is constitutionally permissible and that Devdasan wrongly rejected this classification. But here too, the court explicitly said that in future, the benefit of reservation cannot be extended to ‘promotions’ and the ‘creamy layer’ is to be excluded in OBC reservation and reservation, though not ‘anti-meritarian’, should not apply to some services and certain posts. The court also rejected the 10 per cent reservation for the economically backward communities.

V.P. Singh (Photo: Wikimedia Commons)

Constitutional amendments to overturn Supreme Court judgments

The Congress government then brought in the 77th constitutional amendment to overturn Indira Swahney on the issue of ‘promotions’. But then, in Veerpal Singh Chahuan (1995) and subsequently a five-judge bench in Ajit Singh (1999) introduced the ‘catch up rule’ under which general candidates who are promoted after SC/ST candidates will regain their seniority over SC/ST candidates promoted earlier. As a result, the 85th constitutional amendment had to be passed, at the initiative of the Vajpayee government, to reverse these judgments and to give consequential seniority to SC/ST candidates.

The two amendments were challenged by general candidates leading to the M.Nagraj (2006) judgment where the court upheld the constitutionality of these amendments but made a disturbing observation i.e. the concept of SC/ST reservation is hedged by three constitutional requirements— backwardness of SCs/STs, inadequacy of their representation in public employment and overall efficiency of administration. Justice YK Sabarwal said that reservation is not an issue, its extent is. Following Nagraj, a number of High Courts thus struck down reservation policies of different states in promotions for non-satisfaction of aforesaid three requirements.  In 2017, a bench of Justice Goel and Justice Lalit in BK Pavitra struck down a similar Karnataka legislation on consequential seniority.

Also Read:  10% Reservation for Economically Weak in General Category Cleared by President

The five-judge bench in the Nagraj decision also went against a nine-judge bench in Indira Swahney where the court had said that SCs/STs were definitely socially backward.  A constitutional bench in EV Chinnaiah v. State of Andhra Pradesh (2005) did admit the abysmal backwardness of Dalits and said that SCs are not only backward but most backward. Moreover, since SCs’ backwardness was taken into account when they were so notified by the President under Article 341, Nagraj erroneously insisted on a quantitative collection of data to prove their backwardness. Ironically, no petitioner in Nagraj had disputed backwardness of Dalits yet the court ordered proof of backwardness on the basis of hard data.

Jeevan Reddy in Indira Swahney (para 788) had explicitly observed that Scheduled Castes and Scheduled Tribes are without doubt backward for the purposes of this clause; none suggested that they should satisfy the test of social and educational backwardness.” In paras (796-797), the judgement said that “the test of requirement of social and economic backwardness cannot be applied to Scheduled Castes and Scheduled Tribes which indubitably falls within expression  ‘backward class of citizen’”. The Nagraj judgment is also wrong on the issue of exclusion of the creamy layer in promotions. When creamy layer is not relevant at the initial appointment, how can its exclusion be insisted upon during promotions? Creamy layer exception, as per Indira Swahney, is applicable only to OBC reservation and is irrelevant to SC/ST reservation. Subsequently, in Ashok Thakur (2008), the apex court clarified that creamy layer doctrine has no applicability in SC/ST reservation.

Efficiency and reservation

Nagraj’s insistence on efficiency is also based on an erroneous reading of Article 335. The heading of Article 335 is ‘claims of SCs and STs to services and post.’ The court has given more emphasis to the expression ‘consistently with the maintenance and efficiency of administration’ which is a supportive phrase instead of the primary concern of the article i.e. the claims of Dalits. The expression ‘claims’ is all important.

Efficiency is to be seen in the performance of SC/ST employees. No scientific research has so far proved that SC/ST employees are less efficient in the performance of their duties. Similarly, there is no data that proves that IAS toppers of a particular batch were more efficient in comparison to their other batch mates. Judiciary should not pre-judge the efficiency of any employee prior to appointment/promotion. Moreover, there is no statistical basis to argue that efficiency will be adversely affected if reservation exceeds the 50 per cent limit or if it is extended even to promotions.

Justice Chinnappa Reddy in Vasant Kumar (1985) demolished the efficiency argument when he admitted that “efficiency is very much on the lip service of the privileged whenever reservation is mentioned. Efficiency, it seems, will be impaired if reservation exceeds 50%; efficiency, it seems, will suffer if carry forward rule is adopted; efficiency, it seems, will be injured, if the rule of reservation is extended to promotional posts.” He went on to say that, “the underlying assumption that those belonging of upper castes and classes, who are appointed to non-reserved posts, because of their ‘presumed merit’, naturally perform better than those who have been appointed to reserved posts and the clear stream of efficiency would be polluted by the infiltration of latter into the sacred precincts is a vicious assumption, typical of superior approach of elitists classes.

(Photo: Twitter/ @madhuchak)

Indeed few judges who dealt with reservation matters have demonstrated this elitist approach.

The Jarnail Singh judgment: Reconsideration of Nagraj rejected

In November 2017, the Supreme Court refereed reconsideration of Nagraj to the constitution bench which delivered its judgment in September 2018 and strangely refused to reconsider Nagraj and merely diluted one condition — the need for collecting quantitative data on the backwardness of SCs/STs. The other two conditions still remain and therefore, the issue of reservation in promotions continues to hang in balance. Justice Nariman, in his 58 page order, did not agree with the observation of Justice Balakrishna in Ashok Thakur (2008) as to the non-applicability of creamy layer in SC/ST reservation and said that the creamy layer exclusion is implicit in equality as unequals cannot be treated equally. Justice Nariman clarified that the application of creamy layer in respect of SC/ST reservation in no way tinkers with the Presidential lists as the same castes continue to remain entitled to reservation. Only non-backward sections that have come out of untouchability or backwardness can be excluded by the constitutional courts to give full effect to right to equality under Article 14 and right to equal opportunities under Article 16.

“Unfortunately, the court overlooked the fact that reservation policies are not linked to the economic status of beneficiaries anywhere in the world.”

Modi government, so far, has not taken any decision to overturn this judgment. Unfortunately, the court overlooked the fact that reservation policies are not linked to the economic status of beneficiaries anywhere in the world. Even in India, we have horizontal reservation for women and persons with disability but we do not exclude the creamy layer in these reservation categories. SC/ST reservation is fundamentally based, not on backwardness but on untouchability and historic discrimination that have not yet been fully removed, as is evident from the cases of atrocities against SCs and STs and some 11,000 or so complaints of discrimination in just promotions with SC/ST commissions. Unlike some of the castes included in the OBC list, no SC/ST caste has political power, social domination and higher economic status. Since creamy layer exclusion will not happen at the initial appointments but only at the time of promotions, there is a contradiction as to why unequals be given any benefit even at the initial stage of recruitment. In several sectors including banking which has five or more scales, the benefit of reservation cannot be given anymore beyond the probationary officer rank.

Also Read:  Quota for All is Quota for None: Kaushik Basu on BJP’s 10% EWS Reservation

In KC Vasant Kumar v State of Karnataka (1985), the court said that protective discrimination cannot be stretched beyond a point and there are services and posts where skill and expertise should alone be given weightage.

Credits: Wikimedia Commons

Thus, it can be said that courts generally have not shown much enthusiasm towards reservation policies and have indeed been denying reservation in promotions; in speciality or super speciality courses; to a solitary post; on economic basis; for Jats, Gujjars, Muslims etc. Judicial legislation in 50 per cent upper limit fixed by the Supreme Court, too, was aimed at curtailing reservation. We have not done any meaningful research on the class character of our judges but it is a fact that overwhelming majority of them do come from an elitist background and Dalit representation has been almost negligible at the top court. No one can or should attribute any motive to a judge in terms of the impact of his ideology or class or caste or religion on his/her judgments and this author is not happy with the multi-religious bench in triple divorce case or the recent nomination of Justice Nazeer to the five-judge bench in the Babri Masjid appeal. But it is also a fact that the diversity of the society should also be reflected in our judiciary so that we have the benefit of experiences of all sections of our population.

Department, not University, as a unit of reservation

The latest issue on reservation is about the application of reservation in the universities. Today, a big protest is also taking place on this issue. As per official data, there are 17,106 teaching positions at 41 UGC-funded central universities, of which 5,997 are vacant as of April 1, 2017. This roughly works out to 35 per cent vacant teaching positions. Out of vacant faculty posts, the maximum are at the assistant professor level (2,457), followed by those of associate professor (2,217) and professor (1,098).  Even with the university as a unit in 41 central universities, we have just 0.7 per cent professors and 1.3 per cent associate professors from the ST and only 3.47 per cent professors and 4.96 per cent associate professors are from SC. There is no OBC Professor or Associate professor. If the department is taken as a unit, these numbers will drastically go down. Just two days ago an advertisement of Central University Rajasthan showed that not a single post from the reserved category has been advertised.

The government did share with the apex court, in its review petition, Banaras Hindu University’s example of the adverse effect of taking a department as a unit. There were 1,930 faculty posts on May 12, 2017. If BHU were to implement reservation based on the University as a unit of reservation, 289 posts would be reserved for SCs, 143 for STs and 310 for OBCs. Under the new formula of taking a department as a unit, the number of reserved positions will come down to 119 for SCs, 29 for STs and 220 for OBCs.

The implementation of the new reservation policy will have a disastrous effect. A study of 20 central universities undertaken by the UGC and MHRD has revealed that the decline in reservation could be to the tune of 58 per cent to 97 per cent for SCs; 74 per cent to 100 per cent for STs; and 25 per cent to 100 per cent even for the OBCs. Professor’s posts in 20 universities will come down from 134 to just four; for STs, it will become zero from 59 and OBC also from 11 to zero. But the unserved or general posts will drastically increase from 732 to 932. At the level of associate professor for SCs, it will come down from 264 to 48, for STs, from 131 to six. For OBCs it will be reduced from 29 to 14. But here again, the general posts will increase from 732 to 932. The reserved posts for the assistant professor will be reduced from 650 to 275, for STs, from 323 to 72 and for OBCs from 1167 to 876. But the unreserved or general posts will go up from 2316 to 3233.

Thus, a department-wise reservation may be a sophisticated beginning of an end of reservation.

Banaras Hindu University (Photo: Twitter/@drusawasthi)

In Vivekanand case, an advertisement of BHU for teaching positions was challenged. BHU, like other central universities, was following UGC policy of treating ‘university’ as the unit for the purposes of reservation. The petitioner quoted in Allahabad High Court  as many as ten judgments (three of apex court) in which the court had directed to take ‘department’ not ‘university’ as unit.

To be fair to Justice Vikram Nath who authored the judgment on his behalf and on behalf of Justice Daya Shankar Tripathi, High Courts are bound by the judgments of the Supreme Court. But then, in the beginning of the judgment itself, Justice Nath, while summing up discussion on State’s power to provide for reservation under Articles 14 and 16, made an interesting observation, “It is not a mandate but liberty given to the state. It is an enabling provision.” Thus, according to him, the state may not provide for reservation. Technically speaking, he is right but the real import of this exemption is that when the state provides for reservation, no one can say it is a violation of the right to equality. But then, we cannot ignore that Article 335 categorically says that “claims” of SC/STs to posts in centre and states ‘shall’ be taken into consideration. As opposed to ‘may’ or ‘will’, ‘shall’ in law means mandatory.

(Photo: Twitter/@scribe_it)

Reservation is not  just a mere discretion of the government but an integral part of the constitutional pact that must be honoured till we achieve an egalitarian society and have pulled up unequals of our society to the level of equals and privileged communities. As long as we have unequals in our society, we cannot, in the name of merit, treat them at par with equals as under the right to equality, likes are to be treated alike and not unlikes are to be treated alike. Equality in law and equality in fact may be entirely different. In fact, ‘substantive equality’ really demands that we should discriminate in favour of the underprivileged and deprived sections of our society.

The judgment ends at page 29 but Justice Nath strangely devotes another 13 pages to obiter dicta and makes a case for a re-examination of reservation by the government though there were no pleadings on this issue. He asked the government to examine whether reservation at all is needed in university teaching posts. He has quoted passing observation of Justice PB Sawant’s concurring opinion in Indira Sawhney, where the learned judge had proposed that instead of mechanical reservation in teaching, we may consider the preference model to see which area the candidates are available in. He also quoted those passages of earlier judgments where courts have either emphasised the need of maintaining ‘efficiency in administration’ under Article 335 of the constitution or referred to areas where reservation may not be appropriate such as space sciences, recruitment of pilots for Air India or professors etc.

Also Read:  Bring Ordinance on Reservation Roster for Teaching Positions: RS Member and DU Professor Manoj Jha Writes to Javadekar

“If SC/ST candidates do not become professors, they cannot become Dean or Vice-Chancellor as well.”

The courts have used the differences between ‘cadre’, ‘service’ and ‘post’ to arrive at the conclusion that the department should be the unit of reservation. Thus, although lecturers, readers and professors in a university have the same scale and allowances in respective cadres, they cannot be clubbed together. Since there is no scope of interchangeability of posts in different disciplines, each post in a particular discipline is be counted as a separate post. This logic shows that judges are not fully conversant with the working of our universities though it is true that each subject requires different qualifications in terms of masters’ degree and a teacher of one department cannot be given a post in another department.  But then, every university spends a lot of time in deciding reservation and tries to balance completive interests and needs of various departments. We should trust our universities and give them at least the autonomy in deciding which post of which department is to be reserved. Many a time, when universities are not able to fill a reserved seat in one subject and in spite of advertising the post three or four times and holding the selection committee, they may not find suitable candidates for appointment. In such situations, universities transfer the unfilled posts to another subject where there is more likelihood of getting suitable candidates from the reserved category. This certainly is a much better solution.

No diversity in universities

It seems judges had more anxiety about some departments having all reserved posts and others as all unreserved. But this will rarely happen except if a department is very small. If the new formula is not reversed, there will be no SC/ST cadre positions reserved at the level of a professor as most departments have just one post of professor and this being a single post, cannot be reserved as it would then amount to 100 per cent reservation. If SC/ST candidates do not become professors, they cannot become Deans or Vice-Chancellors as well as only a professor with ten years seniority is eligible. In 2018, out of some 496 Vice-Chancellors of Central and state universities, we had just 6 SC, 6 ST and 48 OBC Vice-Chancellors. Scheduled Caste females are just 0.9 per cent and Scheduled Tribe females meagre 0.2 per cent. Muslims too are similarly non-existent in our universities, with Muslim males constituting 1.1 per cent and Muslim females being 0.1 per cent. Till 1974, for instance, all Vice-Chancellors of Puna University were Brahmins and their domination of higher education is widely known. This shows that there is almost no diversity on our campuses.

Thus, clubbing together all the posts of professors in the university as a whole is the only logical thing to do. Since the Supreme Court has refused to overturn the Allahabad High Court judgment, the Modi government is well within its powers to come up with a Bill. The Bill, it seems, was indeed drafted in August 2018 but is awaiting the Cabinet’s nod. If introduced in the Budget session starting today, the Bill will smoothly sail through as no party will dare to oppose such a Bill. With this Bill, the Modi government can certainly send positive signals to the underprivileged sections of our country and it will look perfectly logical after the 10 per cent reservation for the upper castes. Moreover, it will also give the government rich electoral dividends in 2019. But it seems the government has merely asked the Attorney General to draft another review petition.

अब आप न्यूज़ सेंट्रल 24x7 को हिंदी में पढ़ सकते हैं।यहाँ क्लिक करें