Explainer: Why have reservations in promotions sparked such a hectic debate in the courts?

On January 28, the Supreme Court delivered an important judgment clarifying how reservations in promotions for members of the Scheduled Castes and Scheduled Tribes in government jobs should be carried out.

Though reservations in promotions have been in existence for a long time, in 2006 the Supreme Court had introduced extensive conditions relating to data collection that the government had to fulfil relating to backwardness and inadequacy in representation. This made it difficult to implement reservation policies.

The Central government as well as various state governments wanted the court to reconsider this decision since it created a hindrance to implementing reservations in promotions. In 2018, though the Supreme Court refused to reconsider its 2006 decision, it tweaked the conditions.

Even then, however, there was uncertainty on how this should be implemented. As a result, several state governments wanted the court to further clarify how reservations in promotions should be carried out.

In its latest judgment, the Supreme Court has provided some clarity on how data should be collected for reservations in promotions. But it has given governments the discretion to determine when to award reservations in promotions. Using this judgment, the court will now decide individual cases relating to reservations in promotions starting from the last week of February.

This judicial debate becomes important since the confusion about data collection has often meant the de facto denial of reservations in promotions.

What the court held on reservations in promotions

In its January 28 order, the Supreme Court maintained that the Central and state government implementing reservation in promotions have to collect quantifiable data to show that the representation of Scheduled Castes and Scheduled Tribes is inadequate in government service.

However, it did not lay down any yardstick for how this inadequacy had to be measured. This was left to the discretion of the states. The Central government wanted the court to hold that this inadequacy must be measured on the “proportion of SCs and STs to the population of India” but the court did not agree.

However, the court maintained that it would adjudicate if inadequacy has been established or not “on a case-to-case basis”, as held by earlier Supreme Court judgments.

The court added that this data must be collected on the basis of cadres and that reservation must also be given cadre-wise. The court explained that both Central and state services are divided into groups or classes. For instance, the Central government has four groups: Group A, B, C and D. These classes are further divided into different grades. Then, based on the instructions issued by governments, cadres are made for each grade.

The Central government has 3,800 cadres in just 44 ministries, the court noted. There are a total of 90 Central ministries. On top of this, state governments would have their own cadres.

The court also said that the conditions laid down by the Supreme Court in a 2006 judgment would apply retrospectively. This means the promotions awarded before 2006 without following the conditions laid down by the court would not be struck down.

Some parties in the case argued that reservations in promotion should be reviewed every decade, while others argued that the reservations in promotions should be discontinued altogether. However, the court held that this decision was up to the legislature and executive. The government could conduct a review at reasonable periods to see if reservations in promotions should continue.

Why did petitioners approach court in the first place?

In 2006, the Supreme Court in the M Nagaraj case passed a crucial judgment on how governments could carry out reservations in promotions. It held that the government implementing the reservation has to show that it has quantifiable data that the group getting reservations in promotion is backward, inadequately represented and that the reservation does not affect overall efficiency.

Using this judgment, High Courts and even the Supreme Court struck down reservation policies in several states for failing to satisfy these criteria. For instance, in 2012, the Supreme Court upheld the decision of the Allahabad and Rajasthan High Courts striking down reservations in promotion as the government had not conducted the required data-gathering exercise.

In 2012, the Central government also tried to pass the 117th Constitutional Amendment to overturn the M Nagaraj judgment. It stated that the reasoning behind this amendment was that “there is difficulty in collection of quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment. Moreover, there is uncertainty on the methodology of this exercise.”

The Bill was passed by the Rajya Sabha. But it eventually lapsed as it could not be passed in the Lok Sabha due to differences between political parties.

Since then, various governments have been asking the Supreme Court to do away with the criteria set out in the M Nagaraj judgment. In 2018, the Supreme Court ruled that the government would not need to show backwardness since the Scheduled Caste and Scheduled Tribes communities are presumed to be backward. But it upheld all other criteria in the M Nagaraj judgment.

However, even after this judgment, confusion continued on how the data had to be collected and what constitutes inadequacy. Thus, governments wanted clarity on how these conditions would operate. They also argued that the Supreme Court should do away with these criteria.

“Because of the confusion due to Nagaraj, reservations in promotions have been stalled for a long time. There are people who have also retired in the meanwhile,” explained Disha Wadekar, a lawyer who has been involved in challenges to the M Nagaraj case.

What will be the effect of the court’s decision?

Given the confusion around implementing promotions in reservations, lawyers told Scroll.in that this judgment clarifies how data must be collected for reservations in promotions.

“Since there has been so much confusion after Nagaraj, this judgment clarifies how it would be interpreted and rightly gives discretion to governments,” said Anurag Bhaskar, a professor of law at Jindal Global Law School. “In that aspect, this judgment is a welcome change.” However, he added, that the Supreme Court exceeded in its role when it set out the extensive criteria for reservation in promotions in the M Nagaraj case.

Lawyers also explained that since the Supreme Court has held that data must be collected on the basis of cadres, this may mean more data-collection requirements for the Central and state governments.

“This judgment gives the state more to do, rather than less to do,” Rajeev Dhavan, senior advocate and constitutional law expert, told Scroll.in. Now the government will have to collect more data, Bhaskar explained, given that there are numerous cadres in government services, as noted in the court’s judgment as well.

In 2019, the Supreme Court in the BK Pavithra II case, had upheld a group-wise data collection exercise by the state of Karnataka for granting reservations in promotions. However, the court in its latest judgments has said that is contrary to law and that data collection has to be cadre-wise.

After the Supreme Court upheld Karnataka’s collection of data based on groups, some states went ahead and collected data on that basis, Wadekar explained. “But this judgment changes that,” she said. “While this data collection is not impossible, it is more granular. How it plays out we will see in the coming weeks.”

The Supreme Court in its latest judgment clarified that it is only laying down the law. How it is applied is yet to be seen, as the court will listen to individual cases in the coming weeks.

The Supreme Court has also laid down the standard of judicial review in these cases in 2019. In BK Pavithra II, the Supreme Court, for the first time, had to make an assessment of whether the data collection exercise done by the state of Karnataka satisfied the test laid down in the Nagaraj case. In that case, it held that as long as the data collection methodology is statistically sound, it would be valid. The court could only intervene if there is “a complete absence of data or if the data relied on is irrelevant”.

The history of reservation in promotions

There has been a constant back and forth between the courts and the government with regard to reservations in promotions, especially after caste quotas were expanded in 1990 to include Other Backward Classes.

Initially, the Constitution did not have a separate provision for reservations in promotions. However, the Supreme Court upheld reservation in promotions as early as 1962. This trend was followed for many years.

However, in 1992, the Supreme Court, sitting in a nine-judge bench, overruled this. This stopped reservation in promotions. However, the court allowed reservation in promotions to continue for five years from the date of the judgment.

The government, to continue to provide reservation in promotion passed the 77th Constitutional Amendment in 1995, where it inserted Article 16(4A) into the Constitution. This held that the central and state governments could make provisions for reservation of Scheduled Caste and Scheduled Tribe candidates who are “not adequately represented in the [government] services”.

In 2001, the government further amended Article 16(4A) retrospectively, to say that the governments could make reservations for promotions of members of the Scheduled Castes and Scheduled Tribes “with consequential seniority”. This meant that a person from a backward class who got promoted earlier would be senior to a general candidate who gets promoted later, even if the general category candidate was senior to the reserved candidate before their promotion.

In 2000, it inserted Article 16(4B) into the Constitution to say that vacancies in reserved seats would carry forward to next year and would not be counted in the 50% limit to reservations in vacancies next year.

In 2006, in the M Nagaraj case, along with the three conditions for reservations in promotions, the court also laid down other criteria. It said that reservation must not cross 50% and that the “creamy layer” amongst the Scheduled Castes and Scheduled Tribes – those who are better off socially, educationally or economically – must not get the benefit of reservation in promotions. The government tried reversing this with a constitutional amendment but failed.