Reservations in Promotions and the Idea of Efficiency: B.K. Pavitra v Union of India

[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]


This morning, a two-judge bench of the Supreme Court delivered a fascinating judgment in B.K. Pavitra v Union of India, concerning the relationship between reservations in promotions for Scheduled Castes and Scheduled Tribes [SCs/STs], and issues of seniority. The facts were as follows: in 2002, the state of Karnataka enacted a law stipulating – in effect – that consequential seniority would follow upon the promotions of SC/ST employees. To put it in simple language: if a reserved category employee (A) was promoted before a more senior colleague (B) by virtue of A belonging to the reserved category, then – in the higher level post – A would now be senior to B (when, eventually, the latter would get promoted as well).

Readers familiar with reservation will know that this issue – bitterly contested over many decades – was eventually set at rest by amendments to Article 16(4A) of the Constitution, that authorised consequential seniority in cases of reservations in promotions. In Nagaraj, while upholding the amendment in question, a Constitution Bench of the Supreme Court also held that the government was obligated to first collect data demonstrating “inadequacy” of SC/ST representation in the services, their “backwardness”, and the impact on “efficiency”, before it could enact laws in accordance with Article 16(4A). In 2017, the Supreme Court then found that the Karnataka law did not comply with Nagaraj, and was therefore unconstitutional (B.K. Pavitra – I). In response, the Karnataka government commissioned a study [“the Ratna Prabha Committee Report”], and based on the results of the study, (basically) re-enacted the earlier law.

The constitutional challenge to the law raised a host of issues. It was argued that Karnataka had impermissibly “overruled” the judgment in Pavitra – I by re-enacting the law that had been held to be unconstitutional, and doing it retroactively, to boot. It was argued that the bill had been wrongly sent for Presidential assent. It was argued that the study on the basis of which the law was passed was flawed. And it was argued that the law was unconstitutional because it failed to exclude the “creamy layer.” In this essay, I will not discuss all of the above issues: on some points, such as legislative overruling, the Court essentially synthesised and restated existing law; readers interested in the subject may read the judgment for a clear and lucid exposition of the principles. What I want to focus on, rather, are some of the novel issues that arose, as well as the novel treatment that the Court accorded to older issues.

Standards of Judicial Review

As the Chandrachud J. correctly observed at the beginning of the judgment, this was the first time in the post-Nagaraj era that the Court was explicitly asked to rule upon the State’s data-gathering exercise, which was now a constitutional pre-requisite for any law aiming to implement reservations (with consequential seniority) in promotions (paragraph 4).

The petitioners argued that the Ratna Prabha Committee Report was flawed because, inter alia, its methodology was either incorrect or insufficient (in many respects, such as measuring inadequacy against sanctioned posts instead of filled posts, that it was not cadre-based, and so on), and because the reports on efficiency were only general in nature. The Respondents contended, on the other hand, that these questions were within the “subjective satisfaction” of the State (as had been held in Indra Sawhney), and that it was the State that was in the best position to “define and measure merit.”

In response, the Court noted that, as a preliminary point, it would have to set down the parametres of judicial review in a case like this. These parametres, it held, would be based on two mutually reinforcing principles: the first was the general principle that the executive was best aware of prevailing conditions. This is nothing more than the familiar presumption of constitutionality. The second principle was more specific: in the context of reservations, questions such as adequacy of representation would be left, at the first instance, to the subjective satisfaction of the State. This was because, as Chandrachud J. noted, the State was tasked with promoting substantive equality under the Constitution through the vehicle of reservations. (paragraph 95). Applying these principles to the Ratna Prabha Committee Report, Chandrachud J. observed that the Report was based on sampling methods that were broadly accepted among social scientists. There was no evidence that extraneous or irrelevant material had been used. Beyond that assessment, it was not for the Court to hold that the Report was invalid because the best (or substantially better) methods were available, that had not been used. And on the basis of the Report, it was open to the legislature to hold that a disparity between the population percentage of SC/STs, and their representation in the services, was the basis for determining “inadequacy of representation.”

A few things follow from this discussion. The first is that the Court adopted a deferential attitude towards the State’s collection of data, and its inferences from the data it had collected. The reason for this, the Court held, that the purpose of the exercise was for the legislature to be able to effectively advance the constitutional goal of substantive equality. In other words, the Court recognised the crucial point that constitutional goals are to be advanced by all three wings of the State, and that in different contexts, the primary responsibility for that lies upon different wings. In the specific case of reservations, that responsibility has been placed upon the legislature. For this reason, in the domain of reservations, the Court would only assess the State’s subjective satisfaction on the deferential threshold of rationality and non-arbitrariness. Note, also, what follows: this principle of deference will not apply to every situation where a law is challenged, and the State invokes data collection and analysis to justify itself. In a case where – for example – the challenge is on the basis of a violation of civil rights, the Court may well elect to take on a more interventionist approach to the reliability of the data. In the specific context of reservations, though, given the constitutional text, and the clear responsibility of the State, this the Court’s approach has much to recommend it.

Interrogating Efficiency

Now, of course, it might be argued that the Court ought to have been more interventionist, because the case did indeed involve a violation of rights – the Article 16(1) equality rights of non-SC/ST candidates. This point was addressed by Chandrachud J. in the subsequent section where, relying upon the judgments in N.M. Thomas and Subba Rao J.’s dissenting opinion in Devadasan, he correctly observed that it was the principle of substantive equality – and not formal equality – that underlay the Constitution’s equality code. As Chandrachud J. observed, at paragraph 107:

There is substantial evidence that the members of the Constituent Assembly recognised that (i) Indian society suffered from deep structural inequalities; and (ii) the Constitution would serve as a transformative document to overcome them. One method of overcoming these inequalities is reservations for the SCs and STs in the legislatures and state services.

Readers may consult the following paragraphs for an account of the Constituent Assembly Debates, the the place of reservations in advancing the Constitution’s transformative character. This discussion, however, segued into what is perhaps the most fascinating part of the judgment. Recall that, according to Nagaraj, the government was also required to collect data on whether reservations in promotion would affect “efficiency” in services (as per the requirement of Article 335). And one of the bases on which the petitioners attacked the Ratna Prabha Committee Report was precisely that it had failed to do so.

In response, Chandrachud J. undertook a critique of the concept of “efficiency” itself. In paragraph 119, he observed that:

The Constitution does not define what the framers meant by the phrase efficiency of administration. Article 335 cannot be construed on the basis of a stereotypical assumption that roster point promotees drawn from the SCs and STs are not efficient or that efficiency is reduced by appointing them. This is stereotypical because it masks deep rooted social prejudice. The benchmark for the efficiency of administration is not some disembodied, abstract ideal measured by the performance of a qualified open category candidate. Efficiency of administration in the affairs of the Union or of a State must be defined in an inclusive sense, where diverse segments of society find representation as a true aspiration of governance by and for the people. If, as we hold, the Constitution mandates realisation of substantive equality in the engagement of the fundamental rights with the directive principles, inclusion together with the recognition of the plurality and diversity of the nation constitutes a valid constitutional basis for defining efficiency. Our benchmarks will define our outcomes. If this benchmark of efficiency is grounded in exclusion, it will produce a pattern of governance which is skewed against the marginalised. If this benchmark of efficiency is grounded in equal access, our outcomes will reflect the commitment of the Constitution to produce a just social order. Otherwise, our past will haunt the inability of our society to move away from being deeply unequal to one which is founded on liberty and fraternity. Hence, while interpreting Article 335, it is necessary to liberate the concept of efficiency from a one sided approach which ignores the need for and the positive effects of the inclusion of diverse segments of society on the efficiency of administration of the Union or of a State.

This needs some careful unpacking. What Chandrachud J. is effectively arguing against here is an account of “efficiency” that sees it in purely instrumental terms, and devoid of any relationship with the socio-economic context within which such accounts are inevitably embedded. It is an account that is based in a deeper idea of philosophical individualism, where there exist certain mechanisms – such as standardised tests – that measure “individual merit”, independent of an individual’s group affiliation. This is what efficiency is about, and it must be set off and “balanced” against group-based affirmative action. However, this account has been challenged throughout our history (starting with Subba Rao J.’s dissenting opinion in Devadasan), and here Chandrachud J. takes up the challenge. At the heart of this reasoning is the acknowledgment that assumptions about what people are (i.e., their “merit” or “efficiency”) cannot be separated from what has been done to them (i.e., structural and social privileges, often the product of centuries of discrimination). And ultimately, constitutional values dictate that both must be taken into account. Thus, as Chandrachud J. observed in paragraph 126:

Thus, a meritorious candidate is not merely one who is talented or successful but also one whose appointment fulfils the constitutional goals of uplifting members of the SCs and STs and ensuring a diverse and representative administration.

On these bases – and on the basis of the Report’s finding that there had been no adverse impact even on instrumental efficiency as the data showed, this ground of challenge was rejected as well.

Creamy Layer

A final point: it was argued that the law was unconstitutional because – after Jarnail Singh – it was bound to take into account the exclusion of the creamy layer among SC/STs. The Court correctly observed that the question of creamy layer did not arise at the point of promotions and consequential seniority. It is worth pointing out once more, however, that Jarnail Singh’s finding on this respect is somewhat suspect: the reason why the creamy layer doctrine is not supposed to apply to SCs/STs is because – historically – they have been oppressed by virtue of their group identity. The concept of the creamy layer makes sense if we assume that it is possible to escape one’s group identity (through prosperity or other ways of social advancement, for example). However, when oppression is defined by characteristics such as social stigma (as was well-recognised by Ambedkar and other framers of the Constitution), then the very concept of a “creamy layer” within that group does not make sense. This aspect of Jarnail Singh, it is to be hoped, will be reconsidered at some point.

Conclusion

Today’s judgment is a fascinating read, particularly because of the manner in which it moves between different levels of reasoning – from concrete issues of service jurisprudence to the abstract principles of substantive equality and the idea of merit – and how it weaves them together in one coherent vision of transformative constitutionalism. The Court’s finding on the substantive question – the constitutionality of the seniority law – is informed by its reasoning about the abstract principles that underly the Constitution’s equality code; in other words, the Court believes that the Constitution ideals make a difference, and it explains precisely how it does so. And moreover, it joins an important tradition of judicial reasoning on affirmative action that does not take concepts of “merit” and “efficiency” as self-evident, but subjects them to critical evaluation, from the perspective of the original constitutional vision, noting how they are embedded within our social realities (and inequalities). This tradition of reasoning has, so far, been underdeveloped in our constitutional history – and today’s judgment marks an important milestone in its evolution.

Horizontal Reservations and the Persistence of the Myth of Merit

Editor’s Note 1Posts about the contemporary Supreme Court may be read in the context of the caveats set out in this post (link).


Editor’s Note 2: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations (link) against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances (e.g., the introduction of structural mechanisms to ensure accountability)].


On 18th December, a three-judge bench of the Supreme Court handed down an important judgment clarifying the law on vertical and horizontal reservations (Saurav Yadav v State of UP). The judgment is an extremely complex one, so a preliminary explanation is in order.

Horizontal and Vertical Reservations

The term vertical reservations refers to reservations enacted under Articles 15(4) and 16(4) of the Constitution, which divide a candidate pool into the General, OBC, SC, and ST categories. While this division is not stipulated by the terms of the Constitution (Articles 15(4) and 16(4) use the phrase “backward classes” or “socially and educationally backward classes in addition to SCs/STs), it has come to be encrusted in both law and judicial decisions over the decades.

Now, until the judgment of the Supreme Court in N.M. Thomas, Articles 15(4) and 16(4) were treated as the sole repositories for reservations under the Constitution. That is, the “equality code” – Articles 14-16 was believed to embody a formal vision of equality, and Articles 15(4) and 16(4) were believed to embody specifically carved out exceptions, that allowed for reservations. Sporadic attempts to justify reservations under – for example – Article 16(1)’s equality of opportunity clause, by invoking a substantive vision of equality, were struck down the courts (albeit over some important dissents). However, that changed in N.M. Thomas, when the Supreme Court clarified that Articles 15(4) and 16(4) were not exceptions to, but restatements of, the equality principle contained in Articles 15(1) and 16(1). This was a seismic shift in the jurisprudence, because in the course of one judgment, the Court went from holding that the Constitution was committed to bare formal equality, to holding that it was committed to substantive equality that must account for actually existing differences between people. While judgments after N.M. Thomas have chipped away at its scope, and blocked its transformative potential from truly taking shape, the doctrine itself has, nonetheless, been re-affirmed.

Now, a necessary corollary of Thomas is that reservations are no longer solely facilitated by Articles 15(4) and 16(4). If 16(4) (reservations), for example, is a restatement of 16(1) (equality of opportunity), it must follow that genuine equality of opportunity permits (and may even require) reservations. Consequently, government policies can provide reservations for groups that do not follow the General-OBC-SC-ST division, as long as it is in service of genuine equality of opportunity. Now this is what gives rise to horizontal reservations in favour of (for example) women (where Article 15(3) is also involved), army veterans, the transgender community (although that has not happened yet), and so on. The reason why this set of reservations is called “horizontal reservations” is because it cuts across vertical reservations, in a manner of speaking. Imagine a graph divided into four vertical bars (General, OBC, SC, ST), in accordance with their respective quotas. Now imagine a horizontal bar (“women”) that cuts across these four vertical bars (because women can belong to any of the four categories mentioned above, and the horizontal reservation in question is for “women” as a class).

The Question in Saurav Yadav

Because of the way our reservations jurisprudence has shaped up, the intersection of horizontal and vertical reservations throws up a host of technical, complicated questions. Should horizontal reservations be calculated across the board (i.e., say, 30% of women in X department), or should it be “compartmentalised” (i.e., each category – General, OBC, SC, ST must have 30% of women)? The Supreme Court has, in the past, suggested that the compartmentalised approach would be better, and in my submission, that is correct, as it takes care of inter-sectional concerns. In Saurav Kumar, however, the question was even more technical: if State policy provided for an X% horizontal quota for women, then would women candidates whose overall scores were high enough for them to be recruited without the benefit of reservation, be counted against the quota or not? Or, in other words: let us assume that State policy requires 30% reservation for women. After the selection process, it is found that 10% of the successful candidates without the application of the quota are women. Does that now mean that the quota comes down to 20%, or does it mean that it remains 10% + 30%?

In the case of vertical reservations, this issue had long been sorted, with the Supreme Court making it clear that an SC/ST/OBC candidate whose scores were high enough for the general category, would be “counted” as having made it through that category; and consequently, that candidate would not be treated as SC/ST/OBC for the purposes of reservation. In the case of horizontal reservations, however, the position was unclear, as different High Courts had taken different views on the issue. In Saurav Yadav, the Supreme Court clarified the position, and held that – like the case of vertical reservations – a candidate who belonged to a horizontally reserved category, but whose score was high enough, would not be “counted” as having come through that category for the purposes of calculating quotas.

Analysis

In my submission, this decision is correct. However, I believe that the reasoning deployed by the Court to get there is not. In the majority opinion, Justice Lalit entered into a complicated analysis of various hypothetical scenarios that would arise when both methods were deployed: i.e., counting the high-scoring candidate against the quota, and not. He found that in some cases, horizontal and vertical reservations would intersect in a manner that if the high-scoring candidate was counted against the quota, a number of adjustments would follow, the end result of which might be that a higher-scoring candidate in the overall list would be bumped off in favour of a lower-scoring one (in the interests of space, I don’t want to reprise the calculations here, that run to around thirty pages – interested readers can refer to the judgment for the steps involved in the process). Justice Lalit then found that if, on the other hand, in the same situation, the high-scoring candidate from the horizontally reserved constituency was not counted against the quota, the overall list would have more higher scoring members. He then concluded that the second method enabled “merit” to a higher degree, and was therefore the constitutionally correct way of implementing horizontal reservations. In a brief concurring opinion, with a caveat that I shall later come to, Justice Bhat agreed with this analysis.

In my view, however, there was a much simpler reason for the outcome. The rationale for why, in the case of vertical reservations, a high-scoring candidate is not counted against the quota, is a simple one: the bases of reservations are the historical and structural barriers that prevent certain groups of people from gaining equal access to educational or employment opportunities. It may be the case that a combination of privilege, luck, and work enables some individual members of disadvantaged groups to overcome these barriers; however, that does not change the underlying logic of institutional disadvantage – and remedy – that structures reservation policy. For this reason, the purposes of reservations would be defeated if the numerical quota included those individuals who had managed to overcome disadvantage.

Now, this logic applies in the same fashion to (most) cases of horizontal reservations: like vertical reservations, horizontal reservations are premised on achieving genuine equality of opportunity by accounting for existing structural and institutional disadvantage. Consequently, precisely the same logic of not “counting” individuals who overcome those barriers against the quota should apply. That is all that the Court needed to arrive at its (correct) conclusion.

Unfortunately, however, the Court’s reasoning – that framed the entire question as one of “merit” – was not only unnecessary, but actively problematic at a conceptual level: effectively what the Court said was that models of reservation would be selected based on which one – in a strictly formal and technical sense – was deemed to advance “merit” more than the other (and “merit” here refers to scores in tests). “Merit”, thus, became the normative touchstone on which to adjudicate between these different models. But this took an entirely uncritical approach towards the concept of “merit” itself, something that another bench of the Court recently warned against, in B.K. Pavitra’s Case. There, Chandrachud J. had correctly observed that:

The Constitution does not define what the framers meant by the phrase efficiency of administration. Article 335 cannot be construed on the basis of a stereotypical assumption that roster point promotees drawn from the SCs and STs are not efficient or that efficiency is reduced by appointing them. This is stereotypical because it masks deep rooted social prejudice. The benchmark for the efficiency of administration is not some disembodied, abstract ideal measured by the performance of a qualified open category candidate. Efficiency of administration in the affairs of the Union or of a State must be defined in an inclusive sense, where diverse segments of society find representation as a true aspiration of governance by and for the people. If, as we hold, the Constitution mandates realisation of substantive equality in the engagement of the fundamental rights with the directive principles, inclusion together with the recognition of the plurality and diversity of the nation constitutes a valid constitutional basis for defining efficiency. Our benchmarks will define our outcomes. If this benchmark of efficiency is grounded in exclusion, it will produce a pattern of governance which is skewed against the marginalised. If this benchmark of efficiency is grounded in equal access, our outcomes will reflect the commitment of the Constitution to produce a just social order. Otherwise, our past will haunt the inability of our society to move away from being deeply unequal to one which is founded on liberty and fraternity. Hence, while interpreting Article 335, it is necessary to liberate the concept of efficiency from a one sided approach which ignores the need for and the positive effects of the inclusion of diverse segments of society on the efficiency of administration of the Union or of a State.

In other words, therefore, the concept of “merit” – here constitutionally defined as “efficiency of administration” – could not be understood in isolation from the Constitution’s social justice goals, and, in particular, could not be reduced to something as simplistic and formal as scores in an exam (which, as we well know by now, themselves reflect and entrench social privilege). The Court’s approach in B.K. Pavitra is in stark contrast to its approach in Saurav Yadav where, as we have just seen, merit-defined-as-scores-in-the-exam was uncritically treated as the normative frame within which to examine competing models of reservation.

While Justice Bhat’s concurring opinion appeared, at various points, to reflect this concern, unfortunately, he too stressed the formal conception of “merit” as a normative frame. This conflict is summed up in paragraph 15 of his judgment, where he noted that:

I would conclude by saying that reservations, both vertical and horizontal, are method of ensuring representation in public services. These are not to be seen as rigid “slots”, where a candidate’s merit, which otherwise entitles her to be shown in the open general category, is foreclosed, as the consequence would be, if the state’s argument is accepted. Doing so, would result in a communal reservation, where each social category is confined within the extent of their reservation, thus negating merit. The open category is open to all, and the only condition for a candidate to be shown in it is merit, regardless of whether reservation benefit of either type is available to her or him.

While the first sentence followed up on Pavitra’s insight, the rest of the paragraph slipped back into the rhetoric of merit that structured the majority judgment. Now, as we have seen above, in this case, the philosophical difference did not lead to a difference in outcome. However, it is easy to imagine future cases in which it will, and past cases (such as Indra Sawhney’s affirmation of the 50% cap) where it already has. The future of reservation policy as a vehicle of achieving social justice will be significantly influenced by whether and to what extent the Supreme Court is willing to critically interrogate merit as itself being a function of social privilege that the Constitution is committed to equalising, and whether – on the other hand – it continues to hold on to a view that sees “merit” and reservations locked in a war with each other, with the adjudicatory function being to “balance” the two. The difference is a subtle one, but – as this post should demonstrate – a critically important one in the broader struggle for constitutional justice.

Guest Post: Sex Discrimination and Pregnancy – Reviewing Khusbu Sharma’s Case

[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]


[This is a guest post by Satyajit Bose.]


Over the past year, the higher judiciary has adjudicated two cases that have vast implications for sex-discrimination jurisprudence in India. The first was Ankita Meena v. University of Delhi. In this case, the petitioner had been barred from writing the end-semester examination, on account of her failure to meet the 70% attendance requirement, which was mandated under the Rules of Legal Education of the Bar Council of India. Crucially, the petitioner was in the latter stages of pregnancy, which made it physically impossible for her to attend class. Aggrieved by the decision of the University, she filed a writ petition before the Delhi High Court. A single judge bench of the Court dismissed her writ petition, thereby upholding the decision of the University. The petitioner then appealed to the Supreme Court by Special Leave (which remains pending).

A year later, the Supreme Court had the opportunity to set the record straight. In Khusbu Sharma v. Bihar Police Sub Ordinate Service Commission and Ors., the petitioner had applied for the post of Police Sub-Inspector in the State of Bihar. The selection process was three-fold: two written examinations, followed by a Physical Evaluation Test (PET). However, the petitioner was in the latter stages of pregnancy when the PET was scheduled, and requested the Police Commission for an extension of three to six months on the PET. Having received no response, she filed a writ before the Patna High Court. A single judge bench of the Patna High Court initially granted her relief, which was subsequently overturned by a division bench. The petitioner then appealed to the Supreme Court by Special Leave. The Court allowed the appeal and directed the Commission to conduct a PET for all female candidates who had been unable to participate previously on account of pregnancy.

Barring obvious differences, both cases pertain to the same issue, namely, the beneficial treatment of pregnant women. Why, then, did the respective courts reach different conclusions? Interestingly, neither judgement even attempts to apply Articles 14, 15, 16 and 21 of the Constitution. In Ankita Meena, the judgement of the Delhi High Court was restricted to the Bar Council Rules and its apparent conflict with the Rules of the Delhi University. In Khusbu Sharma, the Supreme Court went one step further, and attempted to engage with beneficial treatment of pregnant women. In this article, I critique the approach adopted by the Court in Khusbu Sharma, and argue that the reasoning is at odds with Articles 16 and 21 of the Constitution.

The Equality of Opportunity

In its judgement, the Court directs the Commission to conduct the PET for all pregnant female candidates. However, the reasoning of the Court is contained in two passages, the first of which is:

“We face a dilemma arising from on one hand maintaining the schedule of the examination as sacrosanct and on the other hand the difficulties faced by women candidates who could undergo the competitive test but are constrained in undergoing PET on account of pregnancy. The presence of lady members in the police force, considering the crime against women, is a prime need of the hour. Thus we feel that every endeavor should be made to ensure that there is higher representation of women in the police services. It is not as if some quota is being carved out for the women candidates but they are competing against men candidates. They have been successful in competitive examination getting higher merit.

There are two objections that may be raised with this argument. First, the Court frames the issue as a conflict between the sanctity of the examination and the difficulties faced by women candidates in undergoing a competitive test. As per this approach, the special treatment of pregnant women is an exception to the sanctity of the examination schedule, which presumably exists so as to ensure that all candidates have equal time to prepare and give the examination, a presumption which I shall address subsequently. Rather, I argue that the issue is better conceptualised as whether a woman’s pregnancy actively prohibits her from competing equally in such an exam, and what directions ought to be given in order to enable effective participation of women in the exam. This distinction is significant as it attributes the differential treatment of pregnant women as an attribute of equality of opportunity under Article 16(1) (which the Court omits from mentioning even once in its judgement, somewhat bizarrely), rather than an exception to equal opportunity in public employment.

Moreover, the Court assumes the value neutral character of the examination schedule as an objective tool in determining merit. What this implies is that institutional rules, such as the sanctity of examinations, may profess to be objective and neutral in selecting the best candidates, while in reality they perpetuate social hierarchies. This conception of merit was most recently espoused by Chandrachud J., in B.K. Pavitra v. Union of India, where it is stated:

“If this benchmark of efficiency is grounded in exclusion, it will produce a pattern of governance which is skewed against the marginalised. If this benchmark of efficiency is grounded in equal access, our outcomes will reflect the commitment of the Constitution to produce a just social order. Otherwise, our past will haunt the inability of our society to move away from being deeply unequal to one which is founded on liberty and fraternity. Hence, while interpreting Article 335, it is necessary to liberate the concept of efficiency from a one sided approach which ignores the need for and the positive effects of the inclusion of diverse segments of society on the efficiency of administration of the Union or of a State.”

In the present case, the need to preserve the examination schedule was presumably to ensure that candidates have equal preparation time and hence, the best method of selecting the most meritorious candidates. However, this has the indirect effect of selecting only men as policemen, as they cannot get pregnant. Such a theory of merit attacks the heart of substantive equality guaranteed under the Constitution, as it ignores the differential impact of institutional rules on different social groups, most prominently those who have suffered centuries of discrimination.

That being said, it may appear that this distinction is seemingly trivial. I argue that the consequence of framing the issue is seen in the reasoning that follows, which is the second objection that may be raised. In this matter, the Court resolves this conflict by highlighting the rise in crimes against women, thus establishing the necessity for greater representation of women in the police force. This reasoning is dangerous as it relies on policy considerations in order to grant the petitioner the relief that had been prayed for, for violation of a fundamental right. What this means is that the petitioner does not enjoy a right to take the examination after her pregnancy had been completed, but was rather being granted the same on account of collective social need for greater representation of women within the police force. Clearly, the emphasis shifts from enforcing individual rights to collective social benefit, which excludes Article 16(1). In a somewhat strange clarification that follows, the Court effectively excludes Article 16(4) as well, by stating that they are not creating a special quota for women in the police force. Therefore, how does the Court reach the conclusion that the PET has to be conducted for pregnant women on this basis?

Pregnancy and the Meaning of “Choice”

Furthermore, the Court also relies on an additional factor to grant the relief that has been prayed for:

We are persuaded to do the aforesaid also for the reason that had recruitments taken place in accordance with certain pre-defined schedules, intervention of this court would not have been called for as candidates would have known as to when recruitment would take place and would have to plan their life accordingly. However that has not happened and in fact, as stated aforesaid, it is on the prodding of this court that these examinations have been held.”

 

In this passage, the Court remarks that if the dates for the exam had been issued from the very beginning, it would not have directed the Commission to conduct PET for pregnant female candidates. Remarkably, the Court states that female candidates must “plan their life accordingly.” Such a statement should not be viewed with surprise. In numerous cases, Indian Courts have held that pregnancy is a voluntary choice that is made by a female, and if it conflicts with any other commitment, no affirmative action can be granted.

In addressing this issue, one of two approaches may be followed. The first approach, as was followed in Inspector (Mahila) Ravina v. Union of India, is to conceptualise pregnancy as a deeply personal and intimate decision that is made by a woman, which falls within the rights guaranteed under Article 21. The second approach, which in my opinion represents the reality of pregnancy, considers the social pressure to bear children that women often face at the time of marriage. In simpler terms, women are often coerced into having children, which negates any element of reproductive choice. Accordingly, it is often not possible to ‘plan their life accordingly’, and place women within the binary of having to bear children, or pursuing their professional ambitions.

Conclusion

From this judgement, it is obvious that pregnancy jurisprudence in India has a long way to go. While the Court must be commended for moving on from Ankita Meena, we are still far away from comprehensively protecting and enforcing the rights of pregnant women in India. At the heart of both judgements lies a question of constitutional interpretation, namely, what theory of equality the Constitution of India is committed to. Until that question is answered, equality of opportunity remains a distant dream.