BABU BANARSI DAS UNIVERSITY

SESSION – 2018/19

TOPIC:RESERVATION IN PROMOTION A RECIPE REVERSE DISCRIMINATION

BY

ANAND YADAV

1140992006

B.A.LL.B[5TH YEAR]

SUBMITTED TO:

SARITA SINGH SIKARWAR

ASST. PROFESSOR

SCHOOL OF LEGAL STUDIES

BBDU
 ACKNOWLEDGEMENT

THE PROJECT REPORT ON RESERVATION IN PROMOTION A RECIPE

REVERSE DISCRIMINATION IS OUTCOME OF GUIDANCE, MORAL,
SUPPORT AND DEVOTION BESTOWED ON ME THROUGHOUT MY
WORK. FOR THIS I ACKNOWLEDGEMENT AND EXPRESS MY PROFOUND
SENSE OF GRATITUDE AND THANKS TO EVERYBODY WHO HAVE BEEN A
SOURCE OF INSPIRATION DURING THE PROECT PREPRATION. FIRST AND
FOREMOST I OFFER OUR SINCERE PHRASES OF THANKS WITH INNATE
HUMILITY TO OUR PROFESSOR: DR SARITA SINGH SIKARWAR GUIDED
OF MY PROJECT FOR PROVIDING HELP WHENEVER NEEDED.

IF I CAN SAY IN WORDS I MUST AT E OUTSET TENDER OUR INTIMACY

FOR RECEIPT OF AFFFETIONATE CARE TO BABU BANARSI DAS
UNIVERSITY FOR PROVIDING SUCH A STIMULATING ATMOSPHERE
WONDERFUL WORK ENVIRONMENT

ANAND YADAV B.A.LL.B [5TH]

1140992006
 DECLARATION
I ANAND YADAV A BONAFIDE STUDENT OF L.L.B. 5TH
YEAR OF BABU BANARSI DAS UNIVERSITY, LUCKNOW
WOULD LIKE TO DECLARE THAT THE SEMINAR ENTITLED
RESERVATION IN PROMOTION A RECIPE REVERSE
DISCRIMINATION SUBMITED BY ME IN PARTIAL
FULLFILLMENT OF THE REQUIREMENT OF THE AWARD
OF THE DEGREE OF L.L.B IS MY ORIGINAL WORK.

PLACE:
DATE: SIGNATURE OF CANDIDATE:
 DEDICATION

Every challenging work needs self effort as well as guidance of

elders especially those who were very close to our heart.

My humble effort I dedicate to my parents for raising me to

believe that anything was possible, whose affection, love,
encouragement and prays of day an d night make me able to get
such success and honour.

Along with all hardworking and respected teachers.

 TABLE OF CONTENT
1. INTRODUCTION
2. RESERVATION IN PROMOTION A RECIPE REVERSE
DISCRIMINATION
3. The Supreme Court has reserved judgement on the issue of
reservation in promotion.
4. Introducing reservation to overcome what you call
maximum inequality originate.
5. 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.
6. reservation in promotion for Scheduled Castes and
Scheduled Tribes become so controversial.
7. reservation in promotion expected to increase the presence
of the Scheduled Castes and Scheduled Tribes at every level
of the services.
8. reservation in promotion become controversial.
9. reservation in promotion.
10. reservation in promotion cease.
11. Clause (4A) was inserted into Article 16 of the
Constitution.
12. Constitution bench of the Supreme Court hear arguments
on the conditions that Nagaraj imposed.
13. reservation a fundamental right.
14. quantifiable data for continuance of backwardness.
15. an IAS officer no longer suffers from untouchability.
16. objection to the condition of “compelling reasons”
17. inadequacy of representation to be established before
granting reservation in promotion.
18. reservation in promotion should not impair efficiency.
Article 335 .
19. Can reservation remove untouchability?
20. Conclusion.
 INRODUCTION
RESERVATION IN PROMOTION A RECIPE REVERSE
DISCRIMINATION

"Equality of opportunity has two different and distinct concepts.

There is a conceptual distinction between a non-discrimination
principle and affirmative action under which the state is obliged
to provide a level playing-field to the oppressed classes," said a
five-judge Constitution Bench headed by Chief Justice Y.K.
Sabharwal.
"It is the equality in fact which has to be decided looking at the
ground reality. Balancing comes in where the question concerns
the extent of reservation. If the extent of reservation goes beyond
the cut-off point then it results in reverse discrimination. Anti-
discrimination legislation has a tendency of pushing towards de
facto reservation. Therefore, a numerical benchmark is the surest
immunity against charges of discrimination."
The Bench said, "Reservation is necessary for transcending caste
and not for perpetuating it. Reservation has to be used in a limited
sense, otherwise it will perpetuate casteism in the country."
Dealing with the extent of reservation, the Bench, quoting the
Indra Sawhney judgment (Mandal case), said the 50 per cent rule
should be applied, otherwise the open competition channel would
get choked for some years and meanwhile general category
candidates might become age barred and ineligible.
Constitutional requirements
"We reiterate that the ceiling limit of 50 per cent reservation, the
concept of creamy layer and the compelling reasons, namely,
backwardness, inadequacy of representation and overall
administrative efficiency are all constitutional requirements
without which the structure of equality of opportunity under
Article 16 would collapse."
"The equality of opportunity under Article 16 (1) is for each
individual citizen, while the special provision under Article 16 (4)
is for socially disadvantaged classes. Both should be balanced
and neither should be allowed to eclipse the other."
Human dignity
The Bench said: "The state is free to exercise its discretion of
providing for reservation subject to limitations, namely, that there
must exist compelling reasons of backwardness [and] inadequacy
of representation in a class of post(s), keeping in mind the overall
administrative efficiency. It is the duty of the state to not only
protect human dignity but also facilitate it by taking positive
steps in that direction."
It said: "If the extent of reservation is excessive then it makes
inroads into the principle of equality under Article 16 (1).
Backwardness and inadequacy of representation are compelling
reasons for the State governments to provide representation in
public employment. Therefore, if in a given case the court finds
excessive reservation under the State enactment, such an
enactment is liable to be struck down since it would amount to
derogation of the constitutional requirements."
Vesting of the power by an enabling provision (to provide for
quotas) might be constitutionally valid.
 RESERVATION IN PROMOTION A RECIPE REVERSE
DISCRIMINATION

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.inasked 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.
The Supreme Court has reserved judgement on the issue of
reservation in promotion.

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.

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.

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.

reservation in promotion for Scheduled Castes and Scheduled

Tribes become so controversial.

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.

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.

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.

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.

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.

reservation in promotion cease.

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.

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.

Judgement BY 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.

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.

Constitution bench of the Supreme Court hear arguments on the

conditions that Nagaraj imposed.

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.

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.

quantifiable data for continuance of backwardness.

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.

The Constitution Bench of the Supreme Court is scheduled to deliver its

judgement on reservation in promotion this month.

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.
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.

inadequacy of representation to be established before granting

reservation in promotion.
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.

reservation in promotion should not impair efficiency. Article 335

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.
the state did take into consideration the claims of Scheduled Castes
and Scheduled Tribes but not; 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.”

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.
 CONCLUSION
"Equality of opportunity has two different and distinct concepts. There is a
conceptual distinction between a non-discrimination principle and affirmative action
under which the state is obliged to provide a level playing-field to the oppressed
classes. "It is the equality in fact which has to be decided looking at the ground
reality. Balancing comes in where the question concerns the extent of reservation. If
the extent of reservation goes beyond the cut-off point then it results in reverse
discrimination. Anti-discrimination legislation has a tendency of pushing towards de
facto reservation. Therefore, a numerical benchmark is the surest immunity against
charges of discrimination."

"We reiterate that the ceiling limit of 50 per cent reservation, the concept of
creamy layer and the compelling reasons, namely, backwardness, inadequacy
of representation and overall administrative efficiency are all constitutional
requirements without which the structure of equality of opportunity under
Article 16 would collapse."
The judges said: "The equality of opportunity under Article 16 (1) is for each
individual citizen, while the special provision under Article 16 (4) is for
socially disadvantaged classes. Both should be balanced and neither should be
allowed to eclipse the other."