There are no breaking news at the moment

Co-Written by Snehil Kunwar Singh & Bhaskar Kumar

In a latest move, the Supreme Court (SC) has agreed to revisit the issue of Quotas in promotion which it held not mandatory for the state to make reservations for SC/ST in promotions in the M. Nagraj judgment delivered in 2006. The fundamental contentions against the reservations in promotions are that the reservation can only be granted by taking into consideration the three compelling circumstances- (i) backwardness of class; (ii) inadequacy of representation; (iii) overall administrative efficiency.

Equality,as has been said by many great jurists, is the essence of democracy and accordingly a basic feature of our constitution which encapsulates under itself the concept of ‘equality of opportunity’. Reservations are necessary for transcending the caste and not for perpetuating it. The principles of ‘equality’ and ‘affirmative actions’ are pillars of our constitution. In his Article titled ‘Challenge to the Living Constitution’, Herman Belz says that the Constitution embodies aspiration to social justice, brotherhood and human dignity. It is a text which contains fundamental principles. Fidelity to the text qua fundamental principles did not limit judicial decision making. The tradition of the written constitutionalism makes it possible to apply concepts and doctrines not recoverable under the doctrine of unwritten living constitution.

The rights conferred on citizens and non-citizens are not merely individual or personal rights but they have large social and political content. Fundamental rights represent the claims of the individual and the restrictions thereon are the claims of the society. Article 38 in Part- IV is the only Article which refers to justice, social, economic and political. However, the concept of justice is not limited only to directive principles. There can be no justice without equality. Article 14 guarantees the fundamental right to equality before the law on all persons. Great social injustice resulted from treating sections of the Hindu community as ‘untouchable’ and, therefore, Article 17 abolished untouchability and Article 25 permitted the State to make any law providing for throwing open all public Hindu religious temples to untouchables. Therefore, provisions of Part-III also provide for political and social justice.

Scheduled castes and scheduled tribes have suffered grave historical injustices and socio-economic inequalities for thousands of years and it is a fact that even now they are backwards for the purpose of extending reservation in promotions. Historically, the division of labor in society has divided castes into the haves and the have-nots. The former owned and continue to own greater means of production and also political power. They form privileged classes in society. The latter constitute deprived or underprivileged classes and still these disparities have not been overcome and in this case there is no impediment in presuming the SCs and STs as backward classes.

It would be pertinent to mention that the recent surveys undertaken by the NSS (National Sample Survey) and other agencies have shown that majority of the poor or people below poverty line belong to schedule castes. The economic reforms implemented by successive governments have widened the gap between the SCs and others not only in economic terms but even in subtle forms of discrimination in modern sectors of employment. The survey reported in Times of India on 12.04.2016 stated as follows:

  1. 50% of India’s poor belongs to SCs/STs.
  2. 75% of SC population is under BPL.
  3. SCs/STs are not just poor but also score high on Kaccha housing, homelessness, and landlessness with agricultural wages as the main source of income.
  4. There is 10.69% literacy gap between SCs and other castes.

According to a written reply by the Department of Personnel and Training (DoPT) in the Lok Sabha, there are 431 officials at the Secretary, Special Secretary, Additional Secretary and Joint Secretary level in various Central Ministries and Departments. Of this, only 28 belong to the SC category and 12 to the ST category. These officials are appointed under the Central Staffing Scheme (CSS).

Merit is not a fixed absolute concept. Amartya Sen, in a book, Meritocracy and Economic Inequality points out that merit is a dependent idea and its meaning depends on how a society defines a desirable act. An act of merit in one society may not be the same in another. The difficulty is that there is no natural order of ‘merit’ independent of our value system. The content of merit is context- specific. It derives its meaning from particular conditions and purposes. The impact of any affirmative action policy on ‘merit’ depends on how that policy is designed.

Unfortunately, in the present case, the debate before us on this point has taken place in an empirical vacuum. The basic presumption, however, remains that it is the State who is in the best position to define and measure merit in whatever ways they consider it to be relevant to public employment because ultimately it has to bear the costs arising from errors in defining and measuring merit. Similarly, the concept of “extent of reservation” is not an absolute concept and like merit it is context- specific. In the case of proportional equality the State is expected to take affirmative steps in favor of disadvantaged sections of the society within the framework of liberal democracy. Egalitarian equality is proportional equality.

While examining the issue of reservation more than 50% J. judgment, the SC in G. M.Rangachari case had held that Article 16(4) provides for adequate representation taking into consideration entire cadre strength. According to it, if it is within the power of the State to make reservations then reservation made in one selection or spread over many selections is only a convenient method of implementing the provision of reservation. Unless it is established that an unreasonably disproportionate part of the cadre strength is filled up with the said castes and tribes, it is not possible to contend that the provision is not one of reservation but amounts to an extinction of the fundamental right.

“status was not achievable by merit, but by ascription”

~Alvin Toffler

Herry Kranz views that merit tests should test “a reasonable measure of job performance and relative ability” in such a way as to give adequate representation to a cross section of society in public services. Today, merit system is not just a connotation for system of “selection of governmental personnel through open competition” but it denotes an effort towards the establishment of an egalitarian society. Merit must assure that a job applicant can do a job not necessarily that he can do it better than anyone, anywhere. Francis Gatton, on the basis of his study, observed that intelligence is hereditary. Similarly, according to CyrilBurt regarding intelligence “environmental factors contribute 16.5 percent to the variance.”

In Indian context, the recruitment policy pay too much attention to the academic and intellectual capabilities and little attention is paid to the recruit’s personal traits such as commitment, ability to cooperate and sociability which are essential qualities needed for a task to be performed. The overemphasis on intellectual and academic capabilities provides the candidate with upper class and caste an edge over the unprivileged castes and class which in itself is violative of right to equality granted under constitution. Efficiency is measured in terms of commitment and loyalty to the societal goals. It involves “an analysis of the administrative situation into a positive value clement (the results to be attained)” and in simpler terms it is measured in terms of the attainment of governmental objectives.There is no empirical justification for the claim that reservation affects efficiency. In the light of above discussion the argument of administrative efficiency against the reservation in promotion falls far short of logic and reasonableness.

Snehil Kunwar Singh & Bhaskar Kumar are 2nd Year, B.A. LL.B. (Hons.) students at National Law School of India University, Bangalore

Comments are closed.