29 March 2021, NIICE Commentary 6917
Dr. Rajkumar Singh
After independence, India committed itself to a socially just and an egalitarian social order. The Constitution promulgated in 1950, recognised the SCs and the STs as two of the most marginalised social groups needing special protections. A number of provisions, therefore, were specifically incorporated for the two social groups with a view to abolish all forms of discrimination, untouchability and social exclusion emanating from the caste system and to alleviate the peripheral position of these social groups. The system of reservations meant to uplift the weaker sections, has in fact, succeeded in the creation of creamy layer within the marginalised social groups to the extent that the percolation of the benefits has been marginal and differentially accessed. On the other, the Indian Government’s approach towards these social groups has been primarily shaped by the provisions in the Constitution, which guarantee equality before the law, and empowers the state to make special provisions for the promotion of the educational, social, political and economic interests of the SCs/STs, and to further, protect them from any form of social discrimination and exclusion.
Social Views about Reservation
For the purpose the Government has used a two-fold strategy for the empowerment of the SCs/STs which includes firstly, the provision of legal safeguards against discrimination and secondly, pro-active measures in the form of reservation policy for the public sector and state supported sectors. Reservation for the SCs/STs in the Government services, educational institutions and political bodies like the Central and State legislatures also fall under pro-active measures. These measures have been incorporated to ensure the proportional participation of the SCs/STs in the public domain-democratic decision-making bodies. However, in private sector, wherein, more than 90 percent of the SC/ST workers are engaged is excluded and therefore, remains outside the purview of the reservation policy and open to possible discrimination. In addition, the policy of reservation has further reduced the scope of employment available in the public domain, since the public sector is in itself being disinvested. It has also been noticed that the decline in Central Government jobs for the SCs and STs was at a rate higher than that for the non-SC/STs.
Definitely in public sector undertakings, the positive impacts of the reservation policy were visible. The representation of the SCs and the STs was found to have improved both in terms of absolute numbers and percentage share. However, the majority of SCs and the STs in public sector undertakings were concentrated in Group D followed by Group C categories of jobs. In Group A and Group B categories of jobs, the representation of the SCs and the STs was found to be unsatisfactory and at levels below the stipulated quotas (except for the STs in Group B category in 2004, whereby, their representation stood at 7.84 percent). Further, the adverse impacts of the New Employment Policy (NEP) were also visible in the Public Sector Employment (PSU) as the absolute numbers and the percentage share of the SC and ST employee declined after its inception. There is no doubt the reservation policy has contributed immensely towards the representation of the marginalised social groups in public sector employment. Concomitantly, much needs to be done to fairly represent the marginalised social communities – their representation especially in the higher echelons of jobs seems to be lower. Despite improvements there is still a gap of more than 3 percent in Group A jobs and 3.18 percent in Group B jobs in 2003. Therefore, it is desirable that the reservation policy in public sector jobs be implemented in its entirety so as to realise the social justice and egalitarian aims of the government.
Legal Battles and Outcomes
In sphere of reservation of the SCs/STs and the OBCs, Indra Sawhney (1992), the Supreme Court generously endorsed the use of caste to determine backwardness, though caste could not be the sole factor. Deference to the state on the determination of backwardness continued in later cases as the Court permitted the same treatment for Other Backward Class (OBC) and Scheduled Castes and Scheduled Tribes (SC/ST). But Indra Sawhney made two important normative points. The first was the 50 percent cap on reservations, ground in the rationale that backwardness does not exist in the abstract; it depends on the average on society. Secondly, the Court held that reservation in public employment could only exist at the entry level. The reasoning was that reservations exist to create a level-playing field, to remedy unequal starting positions, thereby removing the justification for promotion quotas. To overcome the decision of a nine-judge bench in Indra Sawhney and other judgements that disallowed reservation in promotions and consequential seniority. Parliament enacted three constitutional amendments, in 1995, 2000 and 2002. But while upholding the constitutional validity for the amendments, the Supreme Court in the case of M. Nagraj vs Union of India (October 2006), made it very clear that Article 16(4A), which was inserted through these amendments, was only an enabling provision. In essence, every time a government or the legislature sought to provide reservation in promotions under Article 16(4A), it would have to pass constitutional muster. While justifying each attempt to provide reservation in promotions, the state would have to demonstrate backwardness, inadequacy of representation and maintenance of efficiency.
Analysis of Provisions
In the context it should be remembered that Article 16(4A) permits reservation in promotion only for the SCs/STs and not for the OBCs. Secondly, the test of creamy layer is not applicable to SCs/STs. The settled position of law is that all members of recognised SC/ST groups automatically satisfy the condition of backwardness and there is no burden on the state to further establish the backwardness of these individuals benefiting from reservation. While this requirement exists for the OBCs in terms of the ‘creamy layer’ test. Thus, even now, there is no bar on reservation in promotion. In the 2006 judgement on the extent to which reservation is permissible, the constitution bench had noted that the ceiling of 50 percent, a concept of creamy layer and the statement of compelling reasons were all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse. Recently in August 2012, the Central Government has decided to amend the constitution (117th Constitution Amendment Bill) to provide for reservation for Scheduled Castes and Scheduled Tribes in promotion in government services. The SCs and the STs are grossly under-represented in the upper echelons of government – as indeed they are in upper management elsewhere and every effort must be made to undo this injustice brought about by centuries old practices of social discrimination. Reservation in promotions has been a sphere of intense disagreement between Parliament and the Supreme Court.
