The Issue of Reservation as Article 16(4A) ' Arbitrary or Mandatory?
The decision fails the test of constitutionalism and needs to be reconsidered
On February 7 2020, a two judge bench of the Supreme Court interpreted the provisions of Article 16(4-A) of the Constitution of India regarding reservation in promotion in the case of Mukesh Kumar & Anr. v State of Uttarakhand & Ors. The issue before the Court was ‘whether the State Government is bound to make reservations in public posts and whether the decision by the State Government not to provide reservations can be only on the basis of quantifiable data relating to adequacy of representation of persons belonging to Scheduled Castes and Scheduled Tribes’.
The Court held that the provision is discretionary and the States are not bound to collect data to check the adequacy of representation of the SCs or STs in public services.
This decision is erroneous and is contrary to the basic principles of reservations laid down under Article 16 and as interpreted by this Court. The fact that the states are not required to collect data to reach the decision whether to give reservation in promotion or not has made Article 16(4A) arbitrary.
It also runs contrary to the intention behind inclusion of the said provision to the Constitution. Moreover, the finding of the Court that the decision taken by the State Government is non-justiciable and cannot be agitated before Courts is deeply flawed.
Provision regarding Reservation in Promotion
Article 16(4-A), inserted vide Constitution (Seventy-Seventh) Amendment Act, 1995, introduced the provision of reservation in matters of promotion with consequential seniority. (The provision of ‘Consequential Seniority’ was introduced vide Constitution (Eighty- Fifth) Amendment Act, 2001). The essential elements of the Article are as follows-
(a) The States can make provisions for reservations in the matters of promotion to any class or classes of posts in the services under the state in favour of the SCs and STs.
(b) The said SCs or STs should, in the opinion of the State, not be adequately represented in the services under the State.
The Statement of Object & Reasons of the Amendment Act which introduced the provision states that the Government had decided to continue the existing policy of reservation to promotions in order to carry out its commitment to protect the interests of the Scheduled Castes and the Scheduled Tribes. This was necessitated by the fact that the “representation of the Scheduled Castes and the Scheduled Tribes in services in the States have not reached the required level”.
How Court’s ruling is contrary to the provisions of the Article
In the case of Mukesh Kumar, challenge was made to the Order of the High Court of Uttarakhand which had cast an obligation upon the state to collect quantifiable data regarding inadequacy of representation of the Scheduled Castes and Scheduled Tribes in state services before deciding whether to provide reservation in promotion or not.
The main issue before the Supreme Court was whether such a duty upon the states could be read as part of Article 16(4A). The Court categorically decided against it while holding that-
“The State is not bound to make reservations for Scheduled Castes and Scheduled Tribes in matters of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing inadequacy of representation of that class in public services. If the decision of the State Government to provide reservations in promotion is challenged, the State concerned shall have to place before the Court the requisite quantifiable data and satisfy the Court that such reservations became necessary on account of inadequacy of representation of Scheduled Castes and Scheduled Tribes in a particular class or classes of posts without affecting general efficiency of administration as mandated by Article 335 of the Constitution.”
The Court is absolutely correct in pointing out that Articles 16, 16(4) and 16 (4A) are enabling provisions and in no way mean that any individual or group is entitled to a Fundamental Right to reservation in public employment. The language of Article 16(4A) does not make it obligatory for the States to provide reservation for the SCs or STs and it is for the State Government to decide whether reservations are required in the matter of appointment and promotions to public posts.
However, further findings of the Court with respect to the decision-making process of the State and the use of quantifiable data is incorrect and unlawful.
Lack of objectivity- Arbitrary process
As per Article 16(4-A), State Government is mandated to decide whether to provide reservation in promotion or not. A simple reading of the provision would suggest that the manner in which the Legislature intended the State to make this decision is through the process of collection of quantifiable data to analyse the adequacy or inadequacy of representation of the SCs and STs in public services. The purpose of the data thus collected is to facilitate the decision-making process of the State to ensure that the decision taken by the State is well reasoned and backed by proper data.
In the case of M. Nagaraj v Union of India [(2006) 8 SCC 212], while holding that Article 16(4-A) is constitutional, the Court had held that-
“If the State has quantifiable data to show backwardness and inadequacy then the State can make reservations in promotions keeping in mind maintenance of efficiency which is held to be a constitutional limitation on the discretion of the State in making reservation as indicated by Article 335. As stated above, the concepts of efficiency, backwardness, inadequacy of representation are required to be identified and measured. That exercise depends on availability of data. That exercise depends on numerous factors…The discretion of the State is, however, subject to the existence of "backwardness" and "inadequacy of representation" in public employment.”
The requirement of backwardness has been found to be bad in law in 2018, but the appeal to reconsider the decision was refused.
However, in the present matter, the Court interpreted the provision in a manner so as to make it an entirely discretionary act. As per the decision,
“Not being bound to provide reservations in promotions, the State is not required to justify its decision on the basis of quantifiable data, showing that there is adequate representation of members of the Scheduled Castes and Schedules Tribes in State services.”
Thus, the State Government is at complete liberty to frame its reservation policies without being bound by any rules and without any requirement of accountability for its decision. This also means that whether to provide reservation in promotion or not is dependent upon the arbitrary decision of the State Government which can be taken without any objective determination.
Wrong interpretation of the use of the quantifiable data
As per the decision in Mukesh Kumar, the data regarding (in)adequacy of representation of the concerned groups to be collected by the State Government is solely to be used for the purpose of justifying the grant of reservation. The Court does not believe that the State needs to carry out this exercise even to determine whether reservation is to be given in the first place. It, therefore, means that the State has a free handle to take the decision regarding reservation in an arbitrary manner without any reasoned data.
As per the ruling, the collection of data regarding the inadequate representation of members of the Scheduled Castes and Schedules Tribes is a pre-requisite for providing reservations in promotion, and is not required when the State Government decides not to provide reservations. But the lack of guidelines for determining the basis on which the State Government rejects the grant of reservation leaves a scope for acting arbitrarily. Court’s reasoning with respect to the circumstances in which the exercise of collecting the quantifiable data is to be conducted seems erroneous and not in sync with the overall objective of the reservation mechanism.
As the reading of Article 16(4A) suggests, the State Government is required to collect quantifiable data to check the adequacy of representation of the SCs/STs in public services in their state, and it is then upon this data that the government decides whether reservation is required to be given or not. What the Court suggests is contrary to this understanding and also seems illogical. The data is not only to act as a justification for grant of reservation in promotion but is also to act as the basis upon which the State Government takes the decision.
The Court has specifically held in Mukesh Kumar’s case that in a situation where a State Government decision to extend reservation in promotion, on the basis of having collected the quantifiable data which shows inadequate representation of the members of the SC and ST, is challenged before the Court, the said government will have to place the quantifiable data before the Court and satisfy the Court that such reservations became necessary on account of inadequacy of representation of Scheduled Castes and Scheduled Tribes in a particular class or classes of posts without affecting general efficiency of administration as mandated by Article 335 of the Constitution.
Inconsistent and Self-contradictory reasoning
The reasoning of the Court has been inconsistent and self-contradictory. Firstly, the Court holds that it is the discretion of the Government to decide whether or not to extend reservation to promotion. In case they do decide to extend it, they will have to collect quantifiable data to accord some basis to their decision.
Here, the Court, by saying that it’s the discretion of the State Government, has placed an unquestionable trust in the Governments only in case where they have decided not to extend the reservation to promotion. Unquestionable trust because once the Court has held that the Government is not duty bound to extend reservation to promotions, an action of the Government not to extend the benefit of reservation to promotion, how much ever arbitrary or without basis it may be, cannot be questioned in Courts.
However, the said trust is broken in case a Government decides to extend the reservations to promotion. In this case, such an action of the Government is categorically made challengeable in courts. The Court’s ruling has also readily provided the standard which the Government, in a proposed Respondent’s capacity, would need to prove in order to succeed. In this way, the reasoning devised by the Court in arriving at the present decision, is self-contradictory and arbitrary. This decision gives an arbitrary, absolute and unquestionable power in the hands of the Government for not extending the reservations to promotion. However, the power seems to fade away quickly if the Government chooses to extend reservations in promotions because now this power is made subject to judicial review by the courts.
No scope of review by Courts in case the Government decides to not extend reservation to promotion
The Court also did not leave any scope for the decision of the State Government to be challenged in case it has decided to not provide for reservation in promotion. It held that “even if the underrepresentation of Scheduled Castes and Schedules Tribes in public services is brought to the notice of this Court, no mandamus can be issued by this Court to the State Government to provide reservation”. On this reasoning, the direction given by the High Court that the State Government should first collect data regarding the adequacy or inadequacy of representation of Scheduled Castes and Scheduled Tribes in Government services on the basis of which the State Government should take a decision whether or not to provide reservation in promotion was held to be contrary to law and was set aside.
Even when the State has been given freedom to decide whether to provide for reservation in promotion or not, this freedom cannot be allowed to be unfettered and beyond the limits prescribed by law. An arbitrary decision is prima facie out of the scope of constitutional dimensions as has been held by the Supreme Court in the case of Satwant Singh v. Assistant Passport Officer [1967 SCR (2) 525] that “.... In the case of unchannelled arbitrary discretion, discriminatory is writ large on the face of it. Such a discretion patently violates the doctrine of equality, for the difference in the treatment of persons rests solely on the arbitrary selection of the executive.”
For such reasons, the Court in all cases have to check “whether the authority vested with the power has paid attention to or taken into account circumstances, events or matters wholly extraneous to the purpose for which the power was vested, or whether proceedings have been initiated malafide for satisfying a private or personal grudge of the authority” [S. Pratap Singh vs The State Of Punjab 1964 SCR (4) 733].
The Courts, therefore, cannot decide against making an unfettered and unregulated actions of the States unchallengeable. Such exercise of discretion in the process of policy formation which cannot even be challenged before the Court is unlawful and unconstitutional.
What the Court has done in this case is to first grant power to the State Government to make policy decision regarding reservation in an arbitrary manner and then has made this decision un-amenable to judicial review. By acting thus, the Court has functioned against the established principles of natural justice. It is also contrary to the objectives of the reservation policy prescribed under the Constitution. This decision seems completely oblivious of the socio-economic realities of the vast majority of the population which is the beneficiary of this provision.
The equality envisaged under our Constitution would remain unattainable till the time the States are allowed to function in a discretionary manner in such vital decision-making processes. Article 16(4-A), as introduced vide Constitution (Seventy-Seventh) Amendment Act, 1995 has been couched in a strict and mandatory language, and this Court, through the decision in Mukesh Kumar, has diluted the effect of this provision.
This decision fails the test of constitutionalism and, therefore, needs to be reconsidered.