This Article is written by Nandini Jain, a Third-year law student of Bhagwant University, Rajasthan

Introduction

The reservation policy of India has been one of the major planks of its Socio-legal justice delivery system which was primarily designed to compensate for the social injustice that has been meted out to the deprived section of the society. Regarding reservation for education and initial job appointments, it has been reasonable but the question of reservation for promotions has always been a burning issue. In this article, I have compared certain crucial aspects of the legal reservation systems and some of the legal cases involved with regards to promotions especially the indications of equality and Affirmative Actions in India.

The Origin of Reserve System: A Historical Perspective of India

The reservation process had been obtained during British rule and succeeded by the constitutional provision to extend the Scheduled Castes /Scheduled Tribes Accord to Other Backward Classes. These provisions are contained in articles 15(4), and 16(4) of the Indian constitution whereby the state is empowered to take suitable measures to advance the interest of the socially and educationally backward classes of citizens. Whereas clause (4) of the Article allows only reservation in matters of employment under the State, clause (4A) inserted by the 77 amendments of the Constitution in 1995 allows the reservation for the promotion especially for the SCs & STs.[1]

Legal Framework and Key Amendments

Several constitutional amendments have shaped the current framework for reservation in promotions: Several constitutional amendments have shaped the current framework for reservation in promotions:

1. 77th Amendment (1995): Amended Article 16(4A) whereby the state could provide for reservation in promotions in favour of the SCs and STs. [2]

2. 81st Amendment (2000): passed the amendment to Article 16(4B), under which the state can fill up the reserved vacancies in subsequent years without them being restricted by a 50 percent ceiling of reservation.

3. 85th Amendment (2001): Modified Article 16(4A) to order consequential seniority in matters of promotion so that the SCs & STs candidates do not lose bearing of their seniority due to promotion.

4. 117th Amendment Bill (2012): It was planning to reserve the promotion in OBCs but it failed to pass in the parliament session and turn into law.

Key Judicial Pronouncements

An important approach has been made by the judiciary in dealing with the circumstances concerning the provisions of reservation in promotions, which has led to key judgments in this policy’s formulation.

1. Judgement/ case: Indra Sawhney v. Union of India

The case of Indra Sawhney v/s Union of India which is also known as the Mandal commission case formed the basic framework for reservation in the country of India. Article 16 cannot allow promotion to be subjected to a reservation and this has led to the Supreme Court to decide that while the appointments should be subjected to not more than 50% of the reservation this element of promotion should be outside of Article 16(4). However, the judgment made of reservations in promotions permissible by way of legislative changes which resulted in the 77th Amendment.[3]

2. M. Nagaraj and Anr Vs. Union of India (2006)

In the case of M. Nagaraj, the Supreme Court of India affirmed the constitutional vires of Articles 16(4A) and 16 (4B). But the Court laid down some preconditions which the state must meet before it offers comma: reservations in promotions. The Court mandated that the state must demonstrate: The Court mandated that the state must demonstrate:

- Backwardness: It is necessary to show that the group in whose interest the promotion is conducted needs improvement.

- Inadequacy of Representation: It must be easy for the group to be locked out of public employment and have very little visibility in the employment circle.

- Efficiency of Administration: The efficiency of the administration should not be affected by how reservations are implemented and as enshrined in Article 335 of the Constitution.

The Court also stated that these conditions are that the state must garnish sufficient metrics to substantiate before using the law to have reservations in promotions.[4]

3. SC Judgment / 1 (Jarnail Singh v. Lachhmi Narain Gupta [2018])

This was done so concerning the Jarnail Singh case which revisited the Nagaraj judgment. The Supreme Court observed that there is no provision for showing the backwardness of SCs & STs because their backward status is already declared by the constitution. However, the Court stressed the requirement of numerical data to prove the inadequacy of representation and the need for the effectiveness of the administration. It clarified that the exclusion of the creamy layer from the definition of socially and educationally backward classes does not apply to the SCs and the STs in promotional matters.[5]

4. The Recent Developments: M. Nagaraj Review and the Constitutional Validity

In Wilfred Kanana & Ors vs the University of Kenya & 2 others, SC/reference 03 of 2020 the Supreme Court rest straight from the case Affirmed that there is no constitutional right to reservation in promotions; that it remains within the prerogative of the state to determine the enactment. The Court reiterated the imperative that reservation policies should be backed up by numbers and argued that reservation in promotions ought not to dent the efficiency of administration.

The Debate: Equality with Affirmative Action

The debate over reservation in promotions revolves around two conflicting constitutional principles: equality of opportunity and affirmative action In the United States equality of opportunity and affirmative action refer to two different programs of employment.

1. Equality of Opportunity

According to Article 16 (1), all degrees shall be open to all citizens irrespective of the person’s race, origin, sex, or wherever the person may be from. Holders of this view argue that ‘quota’ within promotions is irrational and unconstitutional because it overrides merit and performance considerations about reservation. Some of them argue that they should be merit-based to guarantee an efficient and competent administration. Critics also point to the disadvantage that giving reservations about the promotion will cause employees to feel resentful which will alter relationships in the workplace.[6]

2. Affirmative Action

The supporters of the reservations in promotions believe the same need had to be made by the SCs and STs candidates due to the historical atrocities. Nonetheless, working in appointments those groups remain locked out of career advancement due to social prejudices and discrimination. Promotional affirmative action is viewed as a means of making the workplace fair to minority groups and guaranteeing that they get to serve in higher levels of administration. Some people also state that promotion reservation plays a role in improving the diversity of employees and in turn the decision-making as well as governance processes.[7]

Another important drawback of the need to quantify promotion queues in the case of implementing reservations is the difficulties connected with it. The Supreme Court has specified that to illustrate the lack of adequate representation the state must gather data on how efficiency will be affected. But, the task of accumulating such type of data is difficult and even contentious. There are always challenges in putting together comprehensive information that would assist states in implementing adequate reservation policies; this has often resulted in legal hurdles and thus delays.

The apex court while addressing the question of reservation policy by the Maharashtra government in the Simpson case reiterated the concept of ‘actual data’ and laid down the parameters of data collection and its evaluation in 2022. The Court stressed that the information that the candidates must provide has to be specific, credible, and related to the given public employment.

Indian constitution in Article 335 says that the reservations made to the SCs and STs, in the civil services, will be considered and for that, the efficiency of the civilization is not compromised at all. Debate can be made on the new concept of ‘consequential seniority’ that has been brought in by the 85th Amendment. Concerning critics, consequential seniority distorts the order of employees and might result in incompetencies since experienced employees are automatically replaced by juniors. Critics on the other hand contend that consequential seniority is required to ensure that there is a break in stagnation and that having reservations about promotions is supposed to be to benefit beneficiaries.[8]

The Way Forward: Balancing Merit and Social Justice

It can be therefore said that the controversy over the issue of reservations in promotions cannot be easily settled any time soon since it poses and raises some of the most sensitive issues in any organizational and societal milieu which include; key ideas of meritocracy, equality as well as social justice. It calls for a balanced strategy that will both benefit the targeted vulnerable groups and at the same time be administratively feasible. A more exhaustive program for analysis requires that policymakers concentrate on the collection of adequate data and well-explained dimensions of inadequate representation and efficiency.

However, there are lack of policy intervention to eradicate inequality in its totality and there is a need to go the extra mile and work on the cause of inequality through measures like education, skill development, and economic mobilization. Reservations as a method of government policy should be a part of a diverse approach the main goal of which is the formation of a more just society.[9]

Conclusion

There is still a debate on the reservation of promotions in India which is evidence of broader questions of Equality of opportunity, merit, and deservedness of affirmative action. The concept of policy implementation has been deemed rather challenging by the legal cases of the past. India is still struggling with some of such problems so it is paramount to ensure that the fight for social justice does not distort the efficiency of administration and efficiency of governance in the country. Much more refined and empirical handling of current issues is required, mainly based on the Constitution.

References

[1] Reservation In Promotion: No Need To Collect Data On Backwardness Of SC/ST Employees: SC' (2018) Live Law https://www.livelaw.in/breaking-reservation-in-promotions-nagraj-case-need-not-be-referred-to-larger-bench-for-reconsideration-sc/ accessed 13 September 2024.

[2] . Government of India, 'The Constitution (Seventy-Seventh Amendment) Act, 1995' (1995) https://www.india.gov.in/my-government/constitution-india/amendments/constitution-india-seventy-seventh-amendment-act-1995 accessed 13 September 2024

[3] . Supreme Court of India, Indra Sawhney v Union of India AIR 1993 SC 477 https://main.sci.gov.in/jonew/judis/16589.pdf?utm_source=careers360 accessed 13 September 2024.

[4] Supreme Court of India, Jarnail Singh v Lachhmi Narain Gupta AIR 2018 SC 4309 Jarnail Singh vs Lachhmi Narain Gupta . on 26 September, 2018 (indiankanoon.org) accessed 13 September 2024.

[5] Supreme Court of India, M. Nagaraj v Union of India AIR 2007 SC 71 https://www.scobserver.in/cases/jarnail-singh-v-lacchmi-narain-gupta-reservation-in-promotion-case-background/ accessed 13 September 2024.

[6] Krishnadas Rajagopal, States must decide on SC/ST quota in promotions: Supreme Court (2022) The Hinduhttps://www.thehindu.com/news/national/states-must-decide-on-scst-quota-in-promotions-supreme-court/article38338038.ece accessed 13 September 2024

[7] Ashwini Deshpande, Affirmative Action in India: Theory and Practice(Oxford University Press 2009) https://hindiurduflagship.org/wp/wp-content/uploads/2017/01/Affirmative-action-in-India.pdf accessed 13 September 2024

[8] Debayan Roy, Supreme Court strikes down Maratha Reservation law for exceeding 50 percent cap; upholds Indra Sawhney, 102nd Constitutional Amendment (2021) Bar & Bench https://www.barandbench.com/news/litigation/supreme-court-strikes-down-maratha-reservation-law-upholds-50-percent-cap-indra-sawhney accessed 13 September 2024

[9] Arpita Sarkar, JUDICIAL REVIEW OF RESERVATION IN PROMOTION: A FADING PROMISE OF EQUALITY IN SERVICES GUARANTEED BY THE INDIAN CONSTITUTION (2018) https://nujslawreview.org/wp-content/uploads/2018/08/11-%E2%80%93-2-%E2%80%93-Arpita-Sarkar-%E2%80%93-Judicial-Review-of-Reservation-and-Promotion.pdf accessed 13 September 2024.