Supreme Court Upholds Reservations in Promotions

Supreme Court, as they say, is ‘Supreme’ not because it is infallible but because it is ‘final’. However, in a number of cases, we find that more confusion than clarity has been created by the Supreme Court. Be it regarding the management quota in the or even reservations in the government jobs.   On the issue of the reservation, the Supreme Court has been giving varying opinions in different cases. In Indira ‘Sahni vs Union of India’ case, which was filed immediately after the implementation of Mandal Commission report, the Supreme Court that (a)reservations in the public sector jobs cannot exceed more than fifty per cent. But when some state governments like; Karnataka and Tamilnadu provided for reservations up to, it was justified on archaic grounds; (b) those among backwards belong to the creamy layer would not be able to avail the benefits of reservations.

Another important factor which has been of great debate and discussion is that once a person has availed the facility of reservation at the time of appointment should not be able to get it for the promotion. This matter was bitterly fought but the Government of India set it to rest by amending the Constitution and inserting 4A to the article 16 in 1995 which authorised consequential seniority in cases of reservations in promotions for scheduled castes and scheduled tribes. However, in 2007 Supreme Court said in the case of N. Nagraj that reservation in the promotion cannot be allowed which affects the working capacity of those who have been deprived of the promotion, but it was related to OBCs.  Again in 2002, the Government of Karnataka enacted a law stipulating that consequential seniority would follow upon the promotions of SC/ST employees, which, in a sense means that if a reserved category employee was promoted before a more senior colleague by virtue of his or her belonging to the reserved category than in the higher level post the person would be senior to others.

In 2017 in B.K. Pavitra – I the Supreme Court then found that the Karnataka law did not comply with M. Nagaraj and was therefore unconstitutional. In response, to that, the Karnataka government commissioned a study which is known as the ‘Ratna Prabha Committee Report’, and based on the results of the study, re-enacted the earlier law. It was again challenged in the Supreme Court saying that the government has overruled the law for which it had no permission as per the judgement of B.K. Pavitra – I. It was argued that the bill had been wrongly sent for Presidential assent. And it was also argued that the law was unconstitutional because it failed to exclude the ‘creamy layer.’ The Supreme Court observed at the beginning of the judgment that this was the first time in the post-Nagaraj era that the Court was explicitly asked to rule upon the State's data-gathering exercise, which was now a constitutional pre-requisite for any law aiming to implement reservations. It was also argued that the Ratna Prabha Committee Report was flawed because, inter alia, its methodology was either incorrect or insufficient (in many respects, such as measuring inadequacy against sanctioned posts instead of filled posts, that it was not cadre-based, and so on), and because the reports on efficiency were only general in nature but it was submitted by the other side that it was the State that was in the best position to 'define and measure merit'.

The Supreme Court noted that the State was tasked with promoting substantive equality under the Constitution through the vehicle of reservations. Applying these principles, the Report was based on sampling methods that were broadly accepted among social scientists. There was no evidence that extraneous or irrelevant material had been used. Beyond that assessment, it was not for the Court to hold that the Report was invalid because the best (or substantially better) methods were available, that had not been used. And on the basis of the Report, it was open to the legislature to hold that a disparity between the population percentage of SC/STs, and their representation in the services, was the basis for determining ‘inadequacy of representation.’ The Court adopted a deferential attitude towards the State's collection of data and its inferences from the data it had collected. The reason for this, the Court held, that the purpose of the exercise was for the legislature to be able to effectively advance the constitutional goal of substantive equality. It recognised the crucial point that constitutional goals are to be advanced by all three wings of the State and that in different contexts, the primary responsibility for that lies upon different wings. In the specific case of reservations, that responsibility has been placed upon the legislature. For this reason, in the domain of reservations, the Court would only assess the State's subjective satisfaction on the deferential threshold of rationality and non-arbitrariness. This principle of deference will not apply to every situation where a law is challenged, and the State invokes data collection and analysis to justify itself.  It might be argued that the Court ought to have been more interventionist because the case did indeed involve a violation of rights – Article 16(1) equality rights of non-SC/ST candidates. This point was addressed by the Court by saying that, ‘there is substantial evidence that the members of the Constituent Assembly recognised that (i) Indian society suffered from deep structural inequalities; and (ii) the Constitution would serve as a transformative document to overcome them. One method of overcoming these inequalities is reservations for the SCs and STs in the legislatures and state services.’

According to N. Nagaraj, the government was also required to collect data on whether reservations in promotion would affect 'efficiency' in services (as per the requirement of Article 335). And one of the bases on which the petitioners attacked the Ratna Prabha Committee Report was precisely that it had failed to do so. As far as the concept of efficiency is concerned the Supreme Court said that the Constitution does not define what the framers meant by the phrase efficiency of administration. Article 335 cannot be construed on the basis of a stereotypical assumption that roster-point promotees drawn from the SCs and STs are not efficient or that efficiency is reduced by appointing them. This is stereotypical because it masks deep-rooted social prejudice. The benchmark for the efficiency of administration is not some disembodied, abstract ideal measured by the performance of a qualified open category candidate.

The 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. If this benchmark of efficiency is grounded in exclusion, it will produce a pattern of governance which is skewed against the marginalised. If this benchmark of efficiency is grounded in equal access, our outcomes will reflect the commitment of the Constitution to produce just social order. 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.

‘Efficiency’ that sees it in purely instrumental terms, and devoid of any relationship with the socio-economic context within which such accounts are inevitably embedded. It is an account that is based in a deeper idea of philosophical individualism, where there exist certain mechanisms – such as standardised tests – that measure 'individual merit', independent of an individual's group affiliation. The Court has said that what a meritorious candidate is not merely one who is talented or successful but also one whose appointment fulfils the constitutional goals of uplifting members of the SCs and STs and ensuring a diverse and representative administration.  On the issue of creamy layer, it was argued that the law was unconstitutional because it was bound to take into account the exclusion of the creamy layer among SC/STs. The Court observed that the question of creamy layer did not arise at the point of promotions and consequential seniority. It is worth pointing out that the doctrine of the creamy layer doctrine is not supposed to apply to SCs/STs is because – historically – they have been oppressed by virtue of their group identity.  Thus, the court validated the Reservation Act 2018, which has cured the deficiency which was noticed by B. K. Pavitra - I in respect of the Reservation Act 2002.

Freedom of Media: A sacrosanct and Cherished Right

Freedom of speech and expression is a sacrosanct fundamental right of every India, and it cannot be compromised under any circumstances. It can, however, be restricted only in the cases as enumerated in the Constitution of India. This has again been reaffirmed by the recent Supreme Court judgement in ‘Yashwant Sinha and others vs Central Bureau of Investigation’, wherein all three judges have said in unison that the ‘freedom of the press has always been a cherished right in all democratic countries’. Here it is necessary to know the backdrop of the case. When the Rafale case was decided by the Supreme Court in December last year saying that no irregularities have been committed by the government in finalising the deal of the combat aircraft, which is so necessary for the defence of India. Most of the opposition parties were crying foul over the judgement by saying that the judgement of the Supreme Court has been procured by concealing many vital facts from it.

Thereafter a newspaper namely; ‘The Hindu’ published some stories, which it claims to be investigative, and which were based on the correspondences between the officials of the Defence Ministry and the Defence Minister. Although the letters were reproduced in the newspaper in truncated form and the noting of the Minister were not published. In their letter, the officials had alleged that the decision with regard to Rafael was being taken directly by the Prime Minister Office bypassing the Defence Ministry, which is against the established norms. The petitioners then filed a Review Petition in the light of the new facts, which have emerged after the publication of the stories in the ‘The Hindu’. The government objected to it by saying that no new documents can be added to the Review Petitions, that too when the veracity of the documents itself is doubtful. In the normal course, it is the practice but here the court allowed the clipping of the newspapers to go to the root of the truth.

But here what is important is that the Supreme Court has waxed eloquently about the freedom of media rather than the case. As a matter of fact, in the initial years of the Constitution of India freedom of the press was considered to be synonymous with the speech and expression. However, our Constitution makers were very clear about it that it is not confined only to the media but to every citizen. During the constituent assembly debates, one of the members said that freedom is attained at considerable sacrifices and sufferings. The leaders of the Indian independence movement attached special significance to the freedom of speech and expression, which included the freedom of the press. Pt. Jawahar Lal Nehru in his historic resolution containing the aims and objects of the constitution said that constitution should guarantee and secure to all the people of India, among others, freedom of thought and expression. His famous words were ‘I would rather have a completely free press with all the dangers involved in the wrong use of that freedom than a suppressed and regulated press’. Thus, the constituent assembly considered the freedom of speech and expression to be a precious right.

In Romesh Thappar vs State of Madras the Supreme Court had said that way back in 1950 that there could not be any kind of restriction on the freedom of speech and expression other than those mentioned in Article 19(2) and thereby made it clear that there could not be any interference with that freedom in the name of public interest. The reasonable restrictions under Article 19(2) serve a twofold purpose, viz; on the one hand, they specify that these freedoms are not absolute; on the other hand, they put a limitation on the power of the legislature to restrict these freedoms. Three significant characteristics of it are – the restrictions under this class can be imposed only by the authority of law. No restriction can be imposed by executive action alone. Each restriction must be reasonable, and it must be related to the purposes mentioned in Article 19(2).

So, the question comes what would be the test of the reasonableness? The first test is the sovereignty and integrity of India. No freedom can be given to anybody to attack it. The second test is the security of the state. It has got a much wider expression which includes economic security also. It has two facets; the security of the state, which consists of external and internal. The third test is friendly relations with foreign nations. No news or views can be published or broadcast which is based on fictitious and false facts with intents to vitiate the relationship with the friendly countries.

Another important test is the public order, an elemental need in any organised society which cannot flourish in the state of disorder. There is a number of cases which have been decided by the Hon’ble Supreme Court on this issue. Decency and morality are other criteria for imposing the restrictions because obscenity cannot be allowed in the name of freedom of speech and expression. Similarly, in the exercise of one’s right to freedom and expression nobody can be allowed to interfere with the due course of justice or to lower the prestige or the authority of the court. The contempt of Court cannot be allowed to go unpunished because that will be like creating hindrance in the way of free and fair justice. In this regard, the case of EMS Namboodiripad vs TN Nambiar is very relevant. Shri Namboodiripad, the Chief Minister of Kerala, was very critical of the judiciary and had said in many press conferences that judiciary was an instrument of oppression, which was taken to a contempt of court by the High Court which imposed a fine of Rs. 1,000/- and in default to undergo imprisonment of one month which was also upheld by the Supreme Court. But in the case of Shiv Shankar, who was the Law Minister of India, the same yardstick was not applied. He had said that ‘anti-social elements i.e. FERA violators, bride burners and a whole horde of reactionaries have found haven in the Supreme Court.’ This was an open contempt to the court by lowering down its majesty, but he was allowed to go scot free.

Apart from it, the other restriction is that freedom does not give the right to defame anybody or to incite any offence in society. The last but not the least is the sedition which has been prohibited under the law. However, the last restriction imposed in the name of the sedition is a matter of debate and there is a large number of intellectuals who feel that this provision must go. As a matter of fact, the settled law is that the confidential papers have been granted immunity from disclosure, not because of their contents but, because of the class to which they belong. This class includes Cabinet Minutes, Minutes of Discussion between heads of departments, High-Level interdepartmental communications and dispatches from Ambassadors abroad. In the famous S.P. Gupta’s case, the Supreme Court had said ‘that candour and frankness cannot justify granting of complete immunity against disclosure of documents of this class. The English Judge Lord Reid has said in Conway vs Rimmer case that the court has to strike a balance between the detriment to the public interest on the administrative or executive side and detriment to the public interest on the judicial side. The words of the famous Jurist H.M. Seerwai will always ring true that ‘more stringent restrictions are necessary in the interest of public order because no freedom can survive without it’.

Freedom of speech and expression also works as a window to see what is happening in the outside world and also to bring a breeze of the fresh air inside the house. Till now we have been getting decisions and judgements from the Supreme Court only in the name of freedom of speech and expression, which has mainly remained confined to the freedom of the press but now in the light of the metamorphic changes in the world of media, the scope of the judgements will have to be expanded to include the audio-visual media, web and social media. In the present circumstances, it is the social media which has overtaken the other streams of the media. In fact, it has given freedom to every citizen of the country in the real sense of the term. Earlier, those who have been associated with the newspapers or televisions have been getting access, but others had virtually no say in it. However, with the advent of the social media, every individual has got access to the means of communication to disseminate his or her own views, ideas and the news, which was almost impossible in the other forms of the media. It is also true that while social media is within the reach of everybody and there are innumerable advantages to its use, but the disadvantages are equally fatal because the chances of its misuse are far more than benefits.