The 135 page judgment by Judges UU Lalit and DY Chandrachud talks about producing a just social order, inclusive governance and efficiency based on providing equal opportunities to all social groups.

The argument against affirmative action or reservations has been obfuscated with false arguments around “merit” being posited; displaying a blind sightedness towards the historical marginalisation of oppressed groups. One of the most stark manifestations of this marginalised is caste based oppression. The myth spread by dominant caste groups is that affirmative action interferes with the opportunities of the “General” category groups and impacts the “efficiency” of administrative functions.

A recent judgment by a two-judge bench of the Supreme Court, comprising Judges UU Lalit and Justice DY Chandrachud, is an important step towards setting right the debate, placing emphasis on quantifiable data. It is also one of the first instances of a judgement using available empirical data to justify reservation. This judgment is also an eye-opener on the discourses around caste based reservation.

On Friday, May 10, the Supreme Court upheld a Karnataka state law granting reservations in promotions to state government employees belonging to the Scheduled Caste and Scheduled Tribe communities.

The judgment concerned a set of challenges against the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act 2018, which facilitates a one-time promotion to SC/ST employees largely relying upon a “catch-up” clause. However, the judgment goes beyond merely commenting on the specific issue at hand and is likely to impact the attitudes and mind-sets in general, laying down a rationale as it does of principles of justiciable equity

A brief background and explainer on what has transpired so far
The Supreme Court’s Indra Sawhney vs Union of India (1992) has been hailed as a landmark judgment as it upheld reservations for Other Backward Classes (OBCs). However, this judgment also held that reservations in appointments, under per Article 16(4) of the constitution, don’t apply to promotions.

What does article Article 16(4) say? This Article lays down that nothing in the article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backwards class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

The Constitution (77^th Amendment) Act, 1995 was passed by parliament, inserting Article 16(4A) which allows the State to provide reservations to SCs/STs in matters of promotion, as long as the State believes that this category of the marginalised populations –the SCs and STs – aren’t  adequately represented.

Article 16(4B) provides that reserved promotion posts for SCs and STs that remain unfilled can be carried forward to the subsequent year. Article 16(4B) ensures that the ceiling on the reservation quota – capped at 50% by Indra Sawhney – for these carried forward unfilled posts does not apply to subsequent years.

Article 335 says that the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State

A five judge constitution bench of the Supreme Court delivered its judgment in M. Nagaraj vs Union of India (2006) in which it validated parliament’s decision to extend reservations for SCs and STs to include promotions albeit with three conditions. These were:

• It required the state to provide proof for the backwardness of the class benefitting from the reservation
• It required the state to provide proof for its inadequate representation in the position/ service for which reservation in promotion is to be granted
• It required the state to provide proof to show how reservations in promotions would further administrative efficiency

The judgment soon faced criticisms as it was highlighted that it failed to recognise the centuries of discrimination faced by SCs and STs as it required the state to “reassess” their backwardness. Critics expressed apprehensions that if some of them fail to qualify the criteria for backwardness, reservations for SCs and STs in promotions could be denied.

This, it was claimed, was inconsistent with the preceding judgment in Indira Sawhney case.

In 2018, a five judge bench in the case of Jarnail Singh vs Lachhmi Narain Gupta reviewed the criticisms made against Nagaraj judgment and held that its insistence on collection of quantifiable data on backwardness in relation to the SCs and STs was contrary to Indra Sawhney but it approved Nagaraj’s insistence on proof for inadequate representation of classes for whom promotional posts are reserved, and on submission of additional proof that efficiency wouldn’t be impacted by such reservation, because of Article 335.

It was in this situation and with this judicial history that a two judge bench of the Supreme Court, while presiding over B.K. Pavitra vs Union of India-I, declared a 2002 legislation passed by Karnataka assembly invalid on the grounds that Karnataka hadn’t collected quantifiable data on the three parameters as required in the Nagraj judgment.

The 2002 judgment provided for consequential seniority to roster-point promotes based on the length of service in a cadre.

The Ratna Prabha committee was formed by the Karnataka government after the decision of the Supreme Court in the B.K. Pavitra case. The committee was headed by the additional chief secretary Ratna Prabha and was entrusted with the responsibility of submitting a report on the backwardness and inadequacy of representation of SCs and STs in the state civil services and the impact of reservation on overall administrative efficiency in the state.

The Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation Bill, 2017 was passed by the state assembly on the basis of Ratna Prabha Committee report.

Under Article 200 of the Indian constitution, the bill received president’s assent after it got mired in a controversy around whether a state legislature could or could not undo a Supreme Court’s judgment.

What happened on May 10, 2019 ?
In a judgment that is historic, in the B.K. Pavitra II matter, the Supreme Court (bench of Justices U.U. Lalit and D.Y. Chandrachud) held that the state legislature has remedied the underlying cause which had led to a invalidation of the 2002 Act. The bench made curative legislation constitutionally permissible, and clarified that it isn’t an encroachment on judicial power.

Since the legislature could not  simply override the declaration of invalidity without remedying the basis on which the law was held to be ultra vires, it was important to remove the very basis of the SC’s former decision.

Commenting on the methodology by which the committee reached its findings, the bench said that the committee can’t be held to have acted arbitrarily in adopting recourse to sampling methodologies or to have based its conclusion on any irrelevant material. It said,
“We are unable to find that the Committee has based its conclusions on any extraneous or irrelevant material. In adopting recourse to sampling methodologies, the Committee cannot be held to have acted arbitrarily. If, as we have held above, sampling is a valid methodology for collection of data, the necessary consequence is that the exercise cannot be invalidated only on the ground that data pertaining to a particular department or of some entities was not analysed. The data which was collected pertained to thirty one departments which are representative in character. The State has analysed the data which is both relevant and representative, before drawing its conclusions. As we have noted earlier, there are limitations on the power of judicial review in entering upon a factual arena involving the gathering, collation and analysis of data.”

Catch up rule
A significant part of the ruling is its observation on the catch-up clause. On 1 October 1995, a two judge Bench of the Supreme Court held in Union of India v Virpal Singh Chauhan  (―Virpal Singh‖) that the state could provide that even if a candidate belonging to the SC or ST is promoted earlier on the basis of reservation and on the application of the roster, this would entitle such a person to seniority over a senior belonging to the general category in the feeder cadre.However, a senior belonging to the general category who is promoted to a higher post subsequently would regain seniority over the reserved candidate who was promoted earlier. This rule came to be known as the catch-up rule.”

Comments on “Adequacy of Representation”
The bench said, “The adequacy of representation has to be assessed with reference to a benchmark on adequacy. Conventionally, the State and the Central governments have linked the percentage of reservation for the SCs and STs to their percentage of population, as a measure of adequacy.

Benchmark of Efficiency can’t be grounded in Exclusion!
Regarding ‘efficiency’ it said, “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.”

It added that if the benchmark for efficiency is grounded in “exclusion”, it will produce a “pattern of governance which is skewed against the marginalised.” It said that if the benchmark of “efficiency” is grounded in “equal access”, “our outcomes will reflect the commitment of the Constitution to produce a “just social order.”

Highlighting the grave dangers of not recognising the unequal footing on which marginalised groups, especially caste based groups are located, it said, “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. Establishing the position of the SCs and STs as worthy participants in affairs of governance is intrinsic to an equal citizenship.”

The judgment has significant and a long term bearing on the discourses on affirmative action as it smashes the misconstrued notion that reservations impact administrative efficiency. It draws attention to the fact that merit lies not only in performance but also in achieving goals such as promotion of equality, and not just a formal equality of opportunity but  the achievement of substantive equality.

It puts in perspective the historical injustices meted out to disadvantaged groups and the related socio-political reasons for reservations. The judgment also has a bearing for legislative intent. And policy makers need to heed the appeal that reservations and “efficiency” aren’t antithetical to each other.