Reservation brings out the merit already inherent in marginalised communities: Social justice expert

PS Krishnan is widely recognised as an expert in the field of social justice. A 1956 batch Indian Administrative Service officer, Krishnan retired as secretary of the Ministry of Welfare, which was renamed the Ministry of Social Justice and Empowerment in 1998. As secretary, he was responsible for implementing four important decisions – 27% reservation for the Socially and Educationally Backward Classes, inclusion of Scheduled Caste converts to Buddhism in the reservation pool, grant of constitutional status to the National Commission for Scheduled Castes and Scheduled Tribes, and the centenary celebration of BR Ambedkar. Subsequently, Krishnan became the first member-secretary of the National Commission for Backward Classes.

With the Constitution Bench of the Supreme Court scheduled to deliver its judgement on the subject of reservation in promotion this month, Scroll.in asked Krishnan to explain the issues the judges will consider. In doing so, he also spoke of the philosophy behind reservation and why that policy was extended to promotion in the services.

Excerpts from the interview:

The Supreme Court has reserved judgement on the issue of reservation in promotion. What is the philosophical justification for introducing and continuing with reservation?
The problem of inequality is present in every society. But no society in history or geography established such a foolproof system of maximum inequality as India did. It chases people from birth to death, to the funeral ground. Maximum inequality has been created by the Indian caste system, of which an important element is “untouchability”. This was the most unfortunate fault line of our otherwise glorious civilisation. Untouchability was not only a set of humiliating restrictions and injustices, but also an instrument by which castes, now categorised as Scheduled Castes, were deprived of elementary rights, including having a place in administration and governance.

How did the idea of introducing reservation to overcome what you call maximum inequality originate?
Reservation was initiated first by certain modern reform-oriented princely rulers. The first to introduce reservation was the ruler of Kolhapur in 1902. Then the maharaja of Mysore introduced it in 1921. When the Justice Party came to power in the Madras Presidency in 1920, it brought in reservation a year later. Thereafter, the maharaja of Travancore and the maharaja of Cochin followed suit.

The national movement could not but have taken into account the structural inequality the untouchable castes faced. After all, it was crucial to build Indian unity, wasn’t it?
Indeed, the issue of untouchability was taken into account by our Constitution, which is based on the distilled experience of our Independence movement. Our Constitution mandates equality of status and opportunity. Status refers to the position a caste had in the old caste system. Opportunity refers to the future. The Constitution also mandates justice – social, economic, political. The Constitution thus mandates us to establish social equality between castes deprived of their rights and those that are socially advanced, through comprehensive measures of social justice.

For those critical of reservation, here is a documented fact – when education was introduced in a small measure by the British for Indians, the children of Scheduled Castes were waylaid on their way to school, beaten, their clothes were torn and they were driven back home. The total denial of opportunity for education and upward mobility to the Scheduled Castes made reservation inevitable. Reservation became a state policy in 1942-1943 and after Independence, was continued for them along with Scheduled Tribes.

Why did reservation in promotion for Scheduled Castes and Scheduled Tribes become so controversial then?
The Constitution mandates equality, which means proportionate representation for the Scheduled Castes and Scheduled Tribes at every level, including that of secretary, [the highest rank a person can achieve in the civil services.] Since it would have taken a long time for the Scheduled Castes and Scheduled Tribes recruited at the lower level of the services to reach the higher echelons, not least because of the many obstacles they encounter, reservation in promotion was introduced in 1955.

How was reservation in promotion expected to increase the presence of the Scheduled Castes and Scheduled Tribes at every level of the services?
This is because reservation gives preference to those Scheduled Caste and Scheduled Tribe officers who have the required qualification to be promoted but are not the senior-most. Assume there are three vacancies to be filled and 10 officers who have the qualification to fill them. Assume the last person in the list of 10 is a member of a Scheduled Caste. If one of the three vacancies is reserved, then the Scheduled Caste officer who is 10th in seniority will be promoted. The idea is to eliminate inequality at every level. As you go higher in the services, the presence of Scheduled Castes and Scheduled Tribes becomes lower.

In a normal society, every class will find representation in every matter approximate to their population. If any class gets much more than their percentage in the population or any class gets far less, it means there is imperfection in the social order. There are about 100 secretaries. On the basis of their population, there should have been 15 or 16 secretaries from the Scheduled Castes. Currently, there is just one secretary-level Scheduled Caste officer at the Centre.

When did reservation in promotion become controversial?
When the number of promotions started to grow and became visible, there was a counterblast in the form of cases in the Supreme Court. In the 1962 Rangachari judgement and in other judgements, the Supreme Court upheld the constitutional validity of reservation in promotion.

Why are we back to debating reservation in promotion?
It began with the Supreme Court judgement in the Indra Sawhney case, which upheld the VP Singh government’s decision to grant 27% reservation to the Socially and Educationally Backward Classes. However, Indra Sawhney took up reservation in promotion, though it was not an issue in that case. The government order was for reservation in direct recruitment only. It was only for the Socially and Educationally Backward Classes. Then again, reservation in promotion was in existence only for the Scheduled Castes and Scheduled Tribes.

The norm in jurisprudence is that courts only deal with matters that arise from the petition filed. It should be pointed out that Justice AM Ahmadi, who later became the chief justice of India, dissociated himself, for that reason, from the part of the Indra Sawhney judgement that dealt with reservation in promotion.

What did the judgement say regarding reservation in promotion?
The judges said that Article 16 (4) did not permit the state to have reservation in promotion. Since only the Scheduled Castes and Scheduled Tribes had reservation in promotion, they were affected. In my opinion, Article 16 (4) does not debar reservation in promotion either.

Did reservation in promotion cease then?
Fortunately, the judges gave a five-year window to take steps for discontinuing reservation in promotion for Scheduled Castes and Scheduled Tribes. This naturally upset the communities. They organised conferences and sought my guidance. My suggestion to them was that we should move for a constitutional amendment to continue reservation in promotion.

Was this how Clause (4A) was inserted into Article 16 of the Constitution?
Yes, the [PV] Narasimha Rao government inserted it through the 77th amendment. It was almost unanimously passed, with only one abstention. So you could say there was national consensus cutting across all parties. Three other amendments, pertaining to reservation one way or another, were introduced into the Constitution by the [Atal Bihari] Vajpayee government. All these four amendments were then challenged in the Nagaraj case, and the Supreme Court delivered its judgement in 2006.

What did the judgement in Nagaraj say?
It upheld the constitutional validity of all four amendments. Of these, Article 16 (4A), which enabled the continuance of reservation in promotion for Scheduled Castes and Scheduled Tribes, is relevant in the present context. The Supreme Court upheld the validity of reservation in promotion. While doing so, it held that the individual’s right to not be discriminated against in employment is a fundamental right, but reservation is not a fundamental right. In other words, the state may give reservation as a matter of discretion. But if it exercises discretion in favour of reservation in promotion for Scheduled Castes and Scheduled Tribes, it needs to fulfil certain conditions.

What were these conditions?
These conditions were that the state must furnish data to show that backwardness is continuing; that the principle of creamy layer [a reference to the relatively wealthy and better educated members of marginalised communities] should be followed; that there must be compelling reasons to have reservation in promotion, but efficiency in administration must not be impaired. The state must establish inadequacy of representation and cannot continue reservation indefinitely; and the 50% limit should be followed.

Why did the Constitution bench of the Supreme Court hear arguments on the conditions that Nagaraj imposed last month?
After the Nagaraj judgement imposed these conditions, a series of High Court judgements struck down reservation in promotion in states and at the Centre. These judgements were challenged in the Supreme Court by state governments, the Central government and a number of Scheduled Caste and Scheduled Tribe organisations. Their prayer is to eliminate the conditions Nagaraj imposed and annul the observation that reservation is optional, not mandatory. This was then referred to the Constitution Bench. The Bench can over-rule Nagaraj or interpret it in such a manner that the conditions are removed, or refer the matter to a larger Bench.

Is reservation a fundamental right?
Since social equality and social justice are mandates of the Constitution, all measures of social justice, including reservation and reservation in promotion for Scheduled Castes and Scheduled Tribes, automatically become mandatory. Therefore, in my opinion, with due respect to the Supreme Court, to treat reservation as a matter of discretion is a basic error.

In other words, this basic error led to the imposition of conditions. But, why should asking for quantifiable data for continuance of backwardness be objected to?
The Scheduled Castes were identified on the basis of untouchability and the Scheduled Tribes on the basis of vulnerabilities arising from their isolation and remoteness. They were not identified and listed on the basis of backwardness. Backwardness, or more correctly social and educational backwardness, was a criterion for the identification and listing of the Socially and Educationally Backward Classes.

Mention of backwardness in the context of Scheduled Castes and Scheduled Tribes indicated confusion regarding the identities and criteria for identification of Scheduled Castes, Scheduled Tribes, and Socially and Educationally Backward Classes. If at all a question had to be asked, it should have been: has untouchability persisted with reservation in promotion? I do not think anyone who knows the country will ask that question, because the rampant continuance of untouchability strikes the eye and is visible to everyone.

A lot of people argue that a person who becomes, say, an IAS officer no longer suffers from untouchability.
Take Jagjivan Ram, who unveiled a statue of former Uttar Pradesh Chief Minister Sampurnanand in the 1970s. Quite notoriously, the statue was washed with sanctified water. Even a person who had been a Union minister for the longest time was not exempted from untouchability.

I met a directly recruited Indian Foreign Service officer belonging to the Scheduled Castes, who had just retired, at a book launch last year. His father and grandfather were people of some public standing. The officer told me he had never experienced untouchability until he entered the Indian Foreign Service. He experienced discrimination in the service. I know of many cases of discrimination against Scheduled Caste officers.

Untouchability is deeply ingrained in us. An individual can cease to be backward, but he is not allowed to cease to be an untouchable even if he achieves a high position. The only difference is that untouchability will be practised against him cunningly, cleverly, smartly, in a manner not blatantly visible.

If you are to say that untouchability ceases to exist for a person as soon as he becomes an IAS officer and he should hence not get reservation in promotion, you are likely to have a situation in which there will not be a Scheduled Caste person who can become secretary.

Why?
Ask any Scheduled Caste officer whether he or she has been a victim of untouchability-based discrimination, and he or she will very likely say yes.

In 1990, a list of officers was prepared for promotion to joint secretary. That list came to me for my remarks. I was then the secretary of the Ministry of Welfare. I found that there was only one Scheduled Caste officer in the list. I pointed this out to the concerned officer in the Cabinet Secretariat. I said that if a certain number of officers are to be promoted, then there should be among them one-third Scheduled Caste and one-third Scheduled Tribe officers. I also wrote that I personally knew of two officers, one from North India and the other from South India, who were no less than those who had been found fit to be promoted. The result was that seven Scheduled Caste officers of that batch were promoted to the rank of joint secretary. One of them pursued a PhD from the Indian Institute of Technology, Delhi, after retirement. Such was his quality, yet he had been left out of the initial list.

The question that everyone should ask is whether reservation in promotion will help achieve the constitutional mandate of social justice and social equality in the field of administration. If a decision helps achieve that mandate, it is a good or correct decision. Anything that impedes the process of reservation, including in promotion, is a bad decision.

Reservation in promotion, if implemented sincerely, will over time help provide representation to the Scheduled Castes and Scheduled Tribes approximate to their population at every level. This cannot be called reverse discrimination. This is only correction of the injustice and inequality of centuries of our history.

Why is there objection to the condition of “compelling reasons”?
Compelling reason is an idea imported from American jurisprudence. The rich provisions of social justice and social equality in our Constitution are not there in the American Constitution. In their absence, institutions in the United States evolved the idea of “affirmative action”, which is a vague word. The option to affirm implies the option to deny also.

The United States Supreme Court also said that in case you are introducing any policy of affirmative action in which race is a factor, then that legislation is suspect, compelling reasons should be shown, affirmative action should be “narrow tailored” and the policy and legislation should be subjected to “strict scrutiny”. In our jurisprudence, no legislation is suspect. All legislation is prima facie valid unless, on challenge, it fails the Supreme Court’s test of constitutional validity.

By contrast, the Indian Constitution does not give the option of affirming or denying. It mandates social equality and social justice. In the United States, social justice is not mandated. It must be pointed out that all these American concepts were ruled as irrelevant to India and the Indian constitutional context in a number of judgments by the Supreme Court, summed up in Saurabh Choudhary in 2002 and reiterated in the Ashok Kumar Thakur case. In view of these judgements, continued import of these India-irrelevant American concepts, in my view, is incorrect.

Nagaraj also wanted inadequacy of representation to be established before granting reservation in promotion. Is it a fair principle?
The state has already determined constitutionally that the Scheduled Castes and Scheduled Tribes are not represented adequately in the services. Inadequacy of representation is built into the Constitution. This is made clear by a careful reading of the difference of wording between Clause (4) and Clause (4A) of Article 16.

That said, data can still be provided to show that the Scheduled Castes and Scheduled Tribes are inadequately represented. In Group A [under secretary upwards], Scheduled Castes are between 10% and 11%. If lumping all ranks in Group A still equals 10%-11%, then as you go higher, their representation will become lower. As of now, there are three additional secretaries and one secretary from the Scheduled Castes at the Centre. The Scheduled Tribes are in a similar position. They constitute 25.2% of India’s population. Obviously, 10%-11% in Group A services does not constitute adequate representation.

Nagaraj also said reservation in promotion should not impair efficiency. This has a huge echo with forward castes, who cite Article 335 to bolster their argument.
Article 335 states, “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.”

Article 335 states that the claims of Scheduled Castes and Scheduled Tribes “shall” be taken into consideration. It makes it binding on the state to grant reservation.

Yes, but it can be argued that the state did take into consideration the claims of Scheduled Castes and Scheduled Tribes and then decided against it because it was not consistent with the efficiency of administration.
Remember the analysis of sentences taught in grammar class. You are asked to identify the principal clause, then the subordinate clauses, adjectival clause, adverbial clause, the noun clause and so on. What is the principal clause in Article 335? The answer: “The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration.”

On the other hand, “consistently with the maintenance of efficiency of administration” does not have a verb and, therefore, it is not even a clause. It is only a subordinate phrase. In the interpretation of this Article, people have forgotten the principal clause. In fact, the subordinate phrase has been treated as though it is the principal clause.

This was also pointed out by the National Commission for the Review of the Working of the Constitution, which was headed by former Chief Justice MN Venkatachaliah, in its 2002 report. So when it is said give them consideration, it means give them appointments subject to their possessing the requisite qualification. Not just the Scheduled Castes and Scheduled Tribes, everyone is supposed to have the requisite qualification for promotion.

The emphasis placed on efficiency presumes they are not competent. Merit and efficiency are not inborn qualities, these do not reside in certain castes. They are there in everybody. This was eloquently pointed out by Chief Justice [of the Chief Court of Mysore Leslie] Miller in 1921, then by Justice Krishna Iyer in the NM Thomas case (1976) and Justice Chinnappa Reddy in the Vasantha Kumar case (1985). Swami Vivekananda said, “Education is the process of bringing out the divinity already in man.” I improvise upon it to say, “Reservation is the process of bringing out the merit and efficiency already present in Scheduled Castes, Scheduled Tribes and Socially and Educational Backward Classes.”

Why is Nagaraj’s 50% cap inappropriate?
The 50% cap is applicable only in direct recruitment. Indra Sawhney, harmoniously interpreting Clause (1) and Clause (4) of Article 16, came to the conclusion that the harmonious meeting point is 50% and, therefore, laid out that reservation for the Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Classes should not normally exceed 50%. In fact, the Mandal Commission report said that though the backward classes account for 52% of the country’s population, reservation for them has been pegged at 27% so as not to exceed the 50% cap laid down in the Balaji judgement in 1963.

But the 50% cap does not arise in promotion. Even if the percentage of reservation in promotion for Scheduled Castes and Scheduled Tribes is raised to the level of their population proportion, it will add up to only 22.5%. There is consequently no possibility of reservation in promotion exceeding 50%. Mention of the 50% cap in matters of reservation in promotion for Scheduled Castes and Scheduled Tribes is another indication of confusion between them, on the one hand, and the Socially and Educationally Backward Classes, on the other.

Can reservation remove untouchability?
Reservation by itself is not a cure all [solution] and cannot eliminate untouchability. Apart from reservation, you need other measures to remove untouchability. The castes subjected to untouchability are also landless. In rural areas, a community that is landless is treated as the lowest. If one individual of the community comes up, he will still be perceived as a member of that community with the attendant disabilities and discriminations.

Eliminating the landlessness of the Scheduled Castes, putting an end to the grabbing of the lands of the Scheduled Tribes and restoring their lost lands, and many other measures – economic, occupational, educational, and those related to housing, health and nutrition – are necessary to destroy untouchability. I have prepared a roadmap of measures required for the Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Classes and repeatedly communicated it to successive governments and various parties.