The Indra Sawhney judgment, as we have seen, left the state of law in some degree of confusion. The complexity of the judgment itself ensured a series of what can only be called “procedural wrangles”, which repeatedly went all the way up to the Supreme Court, before the next important constitutional judgment, V. Nagaraj, in 2006. However, in order to understand what was at stake in Nagaraj – and subsequently, in the notorious Ashoka Kumar Thakur, in 2008 – we need to pause and briefly examine the intervening litigation.
Recall that Indra Sawhney v. Union of India had held that reservation under Art. 16(4) was applicable only to initial appointments, and did not extend to promotions. In response, the Centre brought about an amendment to the Constitution. The new provision, Art. 16(4A), permitted the Government to make provisions with respect to Scheduled Castes and Scheduled Tribes in the matter of promotions as well. In R.K. Sabharwal v. State of Punjab (1995), the Punjab Service Rules, it was laid down that there shall be 14% reservation for SCs and 2% reservation for STs. This was maintained in the form of a roster, with certain numbers/vacancies reserved for SCs and STs. It was argued before the Court that if certain reserved category candidates got in through the general quota, then the State’s objective in securing adequate representation, under Art. 16(4) would be satisfied, – therefore, reserved candidates who competed in the general category should also be counted against the reservation quota. In other words, suppose in a workforce of 100 people, there are 14 reservations for SC candidates. The argument is that if, say, 5 SC candidates get in without the quota, then the quota itself should be decreased to 9 – in order that, at the end of the day, there are 14 SC candidates in the workforce (at whichever level of seniority).
In paragraph 5, the Court rejected this argument, holding that the reserved roster spaces would have to be filled by reserved class candidates. It gave no constitutional reason for this claim, but notice how the original argument itself is premised on the group-subordination theory that we have discussed above: if reservation (in appointments, promotions, or whatever) is a group right, meant to uplift a historically subordinated group to a level of substantive equality, then it makes perfect sense to stop once the prescribed percentage of representation has been achieved. On the other hand, if the right is an individual right that is instantiated through the individual’s membership in a group, then the Court’s holding is understandable – because the fact that some members of the subordinated group have achieved parity with the rest of society, doesn’t affect the scope of the right held by other members of the group.
The Court also held that the roster would operate only until the vacancies (and, thereby, the quota) were fulfilled, holding that “as and when there is a vacancy whether permanent or temporary in a particular post the same has to be filled from amongst the category to which the post belonged in the roster.” It justified this on the ground that “the equality of opportunity guaranteed by clause (1) is to each individual citizen of the country while clause (4) contemplates special provision being made in favour of socially disadvantaged classes. Both must be balanced against each other.” But as we have seen, reams of ink were spent in both N.M. Thomas and Indra Sawhney to demonstrate how 16(4) was an “emphatic restatement” and a “facet” of 16(1), and that both 16(1) and 16(4) embodied the same conception of proportional and substantive equality. Here, though, was a clear statement in the mould of Balaji v. Mysore – 16(4) as laying down “special provisions”; although unlike Balaji, the Court here referred to “balancing” 16(1) and 16(4), as opposed to narrowly construing 16(4) as an exception. Again, remember, if 16(4) is a “facet” of 16(1), then the question of “balancing” the two becomes a conceptual absurdity. R.K. Sabharwal, therefore does nothing for doctrinal clarity.
Ashok Kumar Gupta v. State of UP (1997) involved a controversy over the precise ratio of Indra Sawhney. Some UP service rules provided reservations for Scheduled Castes and Scheduled Tribes. There was 21% reservation for SCs (Dalits), 2% reservation for STs (Tribes) and 27% reservation for the OBCs. Moreover, if SCs and STs were not available, and public interest required the vacancies to be filled, general category candidates would be appointed on an ad hoc basis. The carry-forward rule could not exceed 45%. It was also provided that each category would be prepared separately in the order of their inter se seniority for available vacancies for each category and selection would be done from such eligibility list for each category on the basis of seniority.
The main contention was that, following Indra Sawhney, reservations in promotions were inapplicable. This was despite the passage of Art. 16(4A). It was also questioned whether the right to promotion is a fundamental right, and whether the prospective ruling in Indra Sawhney is void.
The Court set out some important principles. It pointed out that the right to reservation in promotion is required to be balanced with the competing right to equality of the general employees. It held that there also needs to be a balance between equality in law and equality in fact (or what, for the sake of greater clarity, might be understood as equality of opportunity and equality of outcomes). In order to bridge the gap between the two, protective discrimination was needed. The Court observed “that de jure equality must ultimately find its raison d’etre in de facto equality.” (that is to say, formal equality of opportunity must be structured in such a way that there is a rough equality in the outcome).
The Court further held that the right to promotion is a statutory right and not a fundamental right. At the same time, however, it held that “Article 16(4A) read with Articles 16(1) and 14 guarantees a right to promotion to Dalits and Tribes as a fundamental right where they not have adequate representation consistently with the efficiency in administration.” What particularly stands out in this case, again, is how the facet language has been replaced by the rhetoric of balancing.
Our last case is Ajit Singh (II) v. State of Punjab (1999), which focused on the legality of the catch-up rule. Suppose that you are a general category candidate, I am a reserved category candidate, and you are senior to me. In the ordinary course of events, when the next vacancy comes up, you will be promoted. But it so happens that the next vacancy is in the reserved category, and consequently, despite your seniority, I am promoted before you. Now, when you do get promoted subsequently, and we’re both at the same level again, do you “catch up” to me, and our relative seniorities go back to what they were before promotions – or am I now senior because I was promote first?
The contentions were based upon two conflicting streams of case law. In Union of India v. Virpal Singh, it was held that it was “permissible” for the Railways to say that reserved candidates would not be entitled to claim seniority at the promotional level as against senior general candidates who got promoted at a later point of time to the same level. It was further held that “it would be open” to the State to provide that as and when the senior general candidate was promoted under the rules – whether by way of a seniority rule or a selection rule – to the level to which the reserved candidate was promoted earlier, the general candidate would have to be treated as senior to the reserved candidate (the roster point promotee) at the promotional level as well, unless, of course, the reserved candidate had received a further promotion by that time to a higher post.
In Ajit Singh (I), it was held that the balance must be maintained in such a manner that there was no reverse discrimination against the general candidates and that any rule, circular or order which gave seniority to the reserved candidates promoted at roster point, would violate Articles 14 and 16(1) of the Constitution of India.
On the other hand, in Jagdish Lal v. State of Haryana, it was held that the general rule in the Service Rules relating to seniority from the date of continuous officiation, which was applicable to candidates promoted under the normal seniority/selection procedure, would be applied even to the roster point promotees, as otherwise there would be discrimination against the reserved candidates.
The Court held that the ambit of Art. 16(1) is very wide, and includes promotion – therefore, the “right to be considered for promotion” is a fundamental right. (overruling Ashok Kumar Gupta). Furthermore, it was held that Arts. 16(4) and 16(4A) are enabling provisions, and do not confer fundamental rights. In this regard, the Court also rejected the argument that these Articles conferred a power coupled with a duty, overruling the cases of Jagannathan and Kuldeep Singh.
Coming to the scheme of Art. 16, the Court held that both the provisions (16(1) and 16(4)) have to be harmonised keeping in mind the fact that both are restatements of the principles of equality enshrined in Article 14. The provision under Article 16(4) – conceived in the interests of certain sections of society – should be balanced against the guarantee of equality enshrined in Clause (1) of Article 16 which is a guarantee held out to every citizen and to the entire society (there is an obvious contradiction here, which doesn’t bear repeating).
The Court then held that in the case of reserved promotions, a reserved category candidate was able to bypass a large number of general category candidates on the roster, without having to compete with them. Therefore, the Court held that “it is clear that the seniority rule relating to ‘continuous officiation’ in promotion is part of the general scheme of recruitment by direct recruitment, promotion, etc…. and is based upon a principle of equal opportunity for promotion. It is only to such promotions that the seniority rule of ‘continuous officiation’ is attracted.” In other words, therefore, on the grounds of equality of opportunity, the Court upheld the catch-up rule.
In response, the Centre amended Article 16(4A). The new Article 16(4A), along with 16(4B), became the subject of a basic structure challenge in the famous Nagaraj case, and it is that case that we shall turn to in the next post. This, however, is the crucial point that we must note: these three cases, post-Indra Sawhney, articulate a vision of equality that we have not yet explicated (it is latent in Indra Sawhney). We saw how before N.M. Thomas, cases adopted a color-blind view of equality, viewing 16(4) as a constitutionally-mandated (otherwise unconstitutional) exception to the basic rule of neutrality and colour-blindness in the 14-15-16 equality code. We saw how N.M. Thomas and Indra Sawhney – albeit with substantial degrees of confusion – seemed to adopt the different philosophy of group subordination, where the concept of equality itself was understood as requiring remedial measures to ameliorate group subordination. Post Indra Sawhney, we now see what seems to be a middle path: instead of one unified vision of equality, the Court holds that there are two, in equipoise and tension with each other, that need to be “balanced”: the colour-blind individualistic vision of 16(1), and the group-based remedial vision of 16(4). What “balancing” means, and how it is to be done, is of course something that the Court must now make up as it goes along.