In an interesting judgment handed down at the end of last month, a two-judge bench of the Supreme Court considered the question of reservations in promotions for disabled persons.
The Prasar Bharati Corporation (a State employer) has four classes of posts – A, B, C, and D. These posts are filled up in three ways – through direct recruitment, promotion, and partly direct recruitment and partly promotion. Now, under Section 33 of the 1995 Persons With Disability Act, the Government is required to provide at least three percent reservation in “Identified Posts” for persons with disabilities. In pursuance of this, Prasar Bharati issued two office Memoranda. Certain posts in each of the four classes were selected to be the “Identified Posts”; however, while for Classes C and D, the reserved category posts could be filled up through any of the three means (promotion, recruitment, and partial promotion/recruitment), under Classes A and B, reserved posts could be filled only through recruitment. In other words, the Memoranda denied reservations in promotions to disabled employees working in Class A and Class B posts.
The legality of this denial was challenged. It was argued that since a number of posts in Class A and B were filled through promotions, effectively, disabled persons were being denied equality of opportunity.
The State’s response was this: in Indra Sawheny v Union of India, the Supreme Court had held that reservations in promotion were impermissible under Article 16(4). Subsequently, To get around this, Parliament then amended Article 16(4) by inserting 16(4A), which specifically authorised reservations in promotions for certain Scheduled Castes and Scheduled Tribes. 16(4A), therefore, excepted only SC/STs from Indira Sawhney’s rule against reservations in promotions. That rule would continue to apply to all other classes of employees, including persons with disabilities.
The basic premise of the State’s argument, therefore, was that the authority for reservations was contained within Article 16(4) of the Constitution. If that was the case, then Indra Sawhney’s interpretation of 16(4) – that it did not allow for reservations in promotions – would hold the field, and prevent the two-judge bench from reaching a different conclusion.
The Court rejected the argument on the basis that Article 16(4) was not the authority for reservations under the Constitution. It did so by going over the history of affirmative action jurisprudence: In its earlier years, the Court had held that Article 16(4) is an exception to Article 16(1)’s guarantee of equality of opportunity. In other words, the default position is a formal equality of opportunity, and Article 16(4) specifically departs from that by permitting the State to make reservations in aid of backward classes. However, starting with Justice Subba Rao’s dissenting opinion in T. Devaadan, through N.M. Thomas, and finally in Indira Sawhney, the position changed, with the Court now taking the view that Article 16(4) was an instance of, or an emphatic expression of, Article 16(1). That is, Article 16(1) involved a commitment to substantive equality (or, in the words of Justice Mathew, proportional equality), and Article 16(4) illustrated one specific way in which that substantive equality could be achieved.
The corollary of this is that Article 16(1) not only permits, but actively contemplates, reservations. So far (to my knowledge), the Court has been circumspect about this conclusion. In the disability judgment, however, Justice Chelameswar takes the logic to its explicit conclusion. In paragraph 21, he notes that:
“Article 16(4) does not disable the State from providing differential treatment (reservations) to other classes of citizens under Article 16(1).”
He then arrives at the inescapable conclusion that:
“Once a post is identified, it means that a PWD is fully capable of discharging the functions associated with the identified post. Once found to be so capable, reservation under Section 33 to an extent of not less than three per cent must follow. Once the post is identified, it must be reserved for PWD irrespective of the mode of recruitment adopted by the State for filling up of the said post.”
This judgment is a good example of how the seemingly abstract shift in the Court’s jurisprudence from “exception” to “facet”, starting with Justice Subba Rao’s radical dissent in Devadasan, to Justices Mathew and Krishna Iyer’s perceptive exploration in N.M. Thomas, and finally the culmination in Indra Sawhney, has a very tangible, real-life impact. The exception-facet shift changes the locus of reservations from 16(4) to 16(1), and allows the State to escape the straitjacket of “backward classes“, and the accompanying judicial restrictions that have crystallised over the years. This is the practical result of the transformation of the concept of equality.
That said, there are certain parts of the judgment that are slightly confusing. In paragraph 18, Justice Chelameswar observes that “the principle is that the State shall not discriminate (which normally includes preference) on the basis of any one of the factors mentioned in Article 16(1)”; then, in paragraph 21: “however, for creating such preferential treatment under law, consistent with the mandate of Article 16(1), the State cannot choose any one of the factors such as caste, religion etc. mentioned in Article 16(1) as the basis.”
These factors, however, are not found in Article 16(1), which simply guarantees equality of opportunity in matters of employment under the State. They are found in 16(2), which states that “no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State…” Presumably, Justice Chelameswar meant Article 16(2). However, once it is established that the equality principle animating Article 16(1) (and therefore, by extension, Article 16(2)) is the principle of substantive equality, it is not clear to me why Article 16(2) prohibits the reservation on the basis of its stipulated markers. Surely if reservations flow from a substantive vision of equality itself (as set out in Article 16(1)), the phrase “discriminated against” in Article 16(2) is also meant to be interpreted in that substantive manner, and therefore, reservations for subordinated religions, castes (or women, for that matter) are permitted under Articles 16(1) and 16(2)?
Be that as it may, the Supreme Court’s judgment is clear, sharp, and lucid on the legal issue, and demonstrates how substantive equality operates in doctrine and practice. It will be interesting to see whether and to what extent future reservation judgments follow this model.