Uttarakhand scraps reservations in promotions, emboldened by biases of apex court, BJP and Congress

On 18 March 2020, the Bharatiya Janata Party-led Uttarakhand government abolished reservations in promotions in state government jobs for Scheduled Castes and Scheduled Tribes. The order came less than two months after a two-judge bench of the Supreme Court delivered its judgment in the case of Mukesh Kumar vs State of Uttarakhand. In it, the judges L Nageswar Rao and Hemant Gupta, both upper caste, wrote that the state government “is not bound to make reservations” and there is “no fundamental right which inheres in an individual to claim reservation in promotion.”  

The judges noted that “the inadequacy of representation is a matter within the subjective satisfaction of the state”—the state government would need to collect data on the representation of Scheduled Castes and Scheduled Tribes only in the case it chose to provide reservations in promotions. However, it would not need to collect data on representation if it chose not to provide such reservations. The bench further stated that even if the under-representation of these communities in public services were brought to the Supreme Court’s notice, it could not issue directions to the state government to provide reservations. 

Three days later, parliamentarians voiced their opposition to the judgment as well as criticised the judiciary in both Lok Sabha and Rajya Sabha. Most critics in the parliament were from Scheduled Caste, Scheduled Tribe and Other Backward Class communities. “The Constitution provides for reservations for Scheduled Castes and Scheduled Tribes,” Ramdas Athawale, a minister of state for social justice and empowerment, said in the Rajya Sabha. “How can the Supreme Court say that it is entirely up to the state government to give reservations?” In the Rajya Sabha, Ram Vilas Paswan, a the union minister of consumer affairs, food and public distribution, listed instances that showed that the judiciary had erected obstacles for marginalised communities to avail of reservations in the past. 

The parliamentarians suggested that the judiciary had an upper-caste bias. Of the 33 judges in the Supreme Court, only one, BR Gavai, is a Dalit. The last judge from the community retired nine years ago.  The court has just seen one judge from the Adivasi and tribal communities—HK Sema, who was a member of a Naga tribe. Multiple members said that there should be reservations for marginalised communities in the judiciary and that reservations should be made a subject in the Constitution’s Ninth Schedule, which offers laws protection from judicial scrutiny. Paswan, too, raised these points, after specifying that he was speaking in his capacity as the leader of the Lok Janshakti Party, distancing the BJP and the central government from his demand. Ramgopal Yadav, a Rajya Sabha member from the Samajwadi Party, said, “Those who are coming into the judiciary, because of their mentality, would definitely decide matters in a way that would be detrimental to the reservations provided to this large populace.”  

While briefing the Rajya Sabha regarding the matter on 10 February, Thawar Chand Gehlot, the union minister of social justice and empowerment, emphasised that the central government was not a party to the case and that it would hold a high-level discussion regarding the matter. Various parliamentarians insisted that the central government respond with more urgency and undo the judgment by filing a review petition or bringing a law that would supersede the judgment. 

A blame game ensued in the parliament. Gehlot, as well as other BJP leaders, pointed out that the case arose due to a 2012 notification by the Uttarakhand state government, then ruled by the Congress, which quashed reservations for members of Scheduled Castes and Scheduled Tribes in public services. But Congress leaders including Adhir Ranjan Choudhary and Ghulam Nabi Azad—the leaders of the opposition in the Lok Sabha and the Rajya Sabha, respectively—conveniently ignored these remarks, blamed the BJP and tried to voice their commitment to social justice. Leaders of the BJP also did not address why the Uttarakhand government, led by their party, wanted to abolish reservations in promotions. But all of them were unanimous in their opposition to the judgment. Yet, the parliament has so far not taken any steps to reverse the court’s judgment.

This was not the first time that the Supreme Court delivered a judgment that restricted the scope of affirmative action granted by the Constitution.  A perusal of some of its major judgments since 1990 showed that the Supreme Court has time and again refused to safeguard the constitutional provisions that provided reservations, and instead, used its powers to dilute such provisions. These judgments also exposed the double standards of the BJP and the Congress, which have traditionally had upper-caste leaderships. There is a stark difference between what these parties submitted in the courts in the past and the pro-reservations stance that their politicians voiced in the parliament on 10 February.

One of the main components for the Mukesh Kumar vs State of Uttarakhand judgment, delivered on 7 February, was the judicial interpretation of Article 16 (4) of the Constitution. Article 16 (4) states that nothing in it “shall prevent the State from making any provision for the reservations of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.” The phrase “backward class of citizens” in the provision refers to Scheduled Castes and Scheduled Tribes. The clause was considered to empower state governments to provide reservations in appointments and promotions. Article 340 of the Constitution, which has always been a part of the document, empowers the centre to investigate the conditions of socially and educationally backward classes. Yet, it was only in August 1990, that the central government, led by the Janata Dal’s VP Singh, a Thakur leader, introduced reservations in appointments to socially and educationally backward classes by categorising several such communities as Other Backward Classes. 

The first major judicial onslaught on reservations came from a constitution bench in the case of Indra Sawhney vs Union of India, in November 1992. The judgment posed several hurdles for Scheduled Castes and Scheduled Tribes to secure reservations in government services. To remove these hurdles, the parliament passed three constitutional amendments in the parliament over a course of ten years.

In Indra Sawhney, the Supreme Court had declared that reservations in appointments, provided through Article 16 (4), do not apply to promotions. “Crutches cannot be provided throughout one’s career. That would not be in the interest of efficiency of administration nor in the larger interest of the nation,” the majority verdict held. In 1995, the Congress government, led by PV Narasimha Rao, reversed this part of the judgment through  the Constitution (Seventy-seventh Amendment) Act, 1995. Through the amendment, the government added clause (A) to Article 16(4) which stated that the state government can provide  reservations in promotion to Scheduled Castes and Scheduled Tribes if it considered the communities were not adequately represented.  

The Supreme Court had held in Indra Sawhney that reservations could only be restricted to 50 percent of the available seats or posts. The BJP government, led by Atal Bihari Vajpayee, passed the Constitution (Eighty-first Amendment) Act in 2000. The amendment allowed for backlog vacancies—reserved vacancies for Scheduled Castes and Scheduled Tribes which were not filled up—to be treated as a separate class which would allow it to escape the 50-percent ceiling.

In Indra Sawhney, the Supreme Court had also specified that relaxation of qualifying marks and standards of evaluation in matters of reservations in promotion was impermissible in view of Article 335 of the Constitution. According to the article, “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.” The Vajpayee government introduced the Constitution (Eighty-second Amendment) Act, 2000, which stated that nothing in Article 335 would stop the government from giving such relaxation to Scheduled Castes and Scheduled Tribes. 

In two judgments, in 1995 and 1996, the Supreme Court said that being promoted through reservations does not confer consequential seniority to a reserved category candidate. Consequential seniority means that if a reserved category candidate is promoted to a higher level before a more senior general-category candidate because of reservations, the reserved-category candidate would gain seniority over the general-category candidate. The Constitution (Eighty-fifth Amendment) Act, 2001, enacted by the Vajpayee government, reversed the implications of the two judgments. These amendments tailor a pro-social justice image of the BJP. But after Narendra Modi came to power in 2014, this image changed to that of a party that opposes reservations in courts.  

The validity of these amendments was reviewed by the Supreme Court. In October 2006, a five-judge bench of the court gave its verdict in M Nagaraj vs Union of India, a case filed by an upper-caste petitioner. The bench upheld the amendments, but put three boundaries on their implementation. The judgement said that if the state government had “quantifiable data to show backwardness” and “inadequacy,” then it could provide reservations in promotions “keeping in mind maintenance of efficiency.” Disha Wadekar, a lawyer in the Supreme Court, termed these boundaries as “judicial innovations.” She said the court’s criteria of “quantifiable” data to show backwardness was absurd. Later, a five-judge bench of the Supreme Court in the case of Jarnail Singh vs Lachhmi Narain Gupta in September 2018 removed the criteria to show backwardness. The other criteria—of showing data illustrating inadequate representation and maintenance of efficiency—remained valid. 

The law laid out in M Nagaraj greatly influenced the Supreme Court’s judgments on reservations—including the one delivered on 7 February in the case of Mukesh Kumar—as well as verdicts of the high courts of Uttar Pradesh and Uttarakhand. The disputed law in Mukesh Kumar is the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994. The Uttar Pradesh government, led by Mulayam Singh’s Samajwadi Party in alliance with the Bahujan Samaj Party, had passed the law to provide reservations in appointments as well as promotions to the three groups in state services.

In 2002, the BSP government in Uttar Pradesh, led by Mayawati, inserted Rule 8-A in the Uttar Pradesh Government Servants Seniority Rules, 1991, which would provide consequential seniority to Scheduled Castes and Scheduled Tribes in promotions. By May 2005, Mulayam Singh was again the chief minister and he removed this rule. Two years later, Mayawati returned to power with full majority and reintroduced the particular section of the rule—applicable to all who were qualified since July 1995. 

Mukund Kumar Shrivastava, an upper-caste petitioner, challenged Rule 8-A in the Allahabad High Court. He had challenged the rule because the rural engineering services department of the government of Uttar Pradesh—where he worked—had promoted employees by conferring consequential seniority. In 2010, the Allahabad High Court upheld the government order providing such seniority. Later, in Prem Kumar Singh vs State of UP, the Lucknow bench of the high court, called the order passed in the Mukund Kumar Shrivastava case per incuriam—characterised by lack of due regard to the law or the facts—and said it did not set any precedent. The high court also struck down a crucial provision of the 1994 Act, Section 3(7), which stated that government orders concerning reservations in promotions issued before the commencement of the Act would remain in force till they are modified or revoked. 

The state government and the Uttar Pradesh Power Corporation Limited, a state government undertaking, challenged this order in the Supreme Court. The matter reached the Supreme Court as UP Power Corp Ltd vs Rajesh Kumar. The BSP-led government argued that a social-justice committee set up by the government in 2001 had established the inadequacy of representation of Scheduled Castes and Scheduled Tribes in promotional posts and various departments and state-owned corporations. They also produced a chart that reflected a lack of representation. They specified that the quantum of reservations in promotion was not breaking the ceiling of 50-percent set by the Indra Sawhney judgement so the decision would not affect administrative efficiency. 

In April 2012, the Supreme Court judges Dalveer Bhandari and Dipak Misra, pronounced the judgment in the case. The bench held that it was “categorically imperative” to conduct a fresh exercise of collecting data on the adequacy of representation of Scheduled Castes and Scheduled Tribes after the criteria for implementing reservations was set in M Nagraj. As a result, the court struck down both Rule 8-A of the 1991 Act and Section 3(7), as it violated the dictum in M Nagraj. 

As the state of Uttarakhand was then carved out of Uttar Pradesh in 2000, the Supreme Court’s verdict had implications for Uttarakhand too. In August 2001, the newly formed state had issued a notification to adopt the 1994 Act with some modifications in the percentage of reservations. According to the 7 February judgment, Uttarakhand government had issued orders—at least two in August 2001 and one in February 2004—to implement the reservation policy. The state government, ruled by both BJP and Congress in its nineteen years of existence, never brought a legislation itself to provide reservations to marginalised communities. 

In July 2011, the state government—led by the Congress, in coalition with the BSP—formed a committee to collect data on the inadequacy of Scheduled Castes and Scheduled Tribes in the services. According to the report submitted by the committee, the communities were inadequately represented in Uttarakhand’s government services—the lawyers for the plaintiff in the 7 February 2020 judgment also mentioned this to the court. This seemed to be in line with the “fresh exercise” contention in the Supreme Court’s UP Power Corp Ltd verdict. 

Even so, the High Court of Uttarakhand ordered that “no promotion can be given by the State of Uttarakhand by taking recourse to Section 3(7) of the Act,” in Vinod Prakash Nautiyal vs State of Uttarakhand in July 2012. A review petition against the judgement was filed, pointing out that the government was in the process of collecting fresh data while the case was pending. This was also struck down by the court. 

The Congress-led state government chose not to challenge this in court. Instead, on 5 September that year, it issued an order that said that all posts in public services in the state shall be filled up without providing any reservations. According to the 7 February 2020 judgment, all government orders to the contrary were “superseded by the proceeding dated 05.09.2012.” 

Gyan Chand, an assistant tax commissioner from the Scheduled Caste community, had challenged the 5 September 2012 order, in the High Court of Uttarakhand. On 1 April 2019, the court ruled in his favour and struck down the 5 September order, stating that it was “contrary to the law declared by the Supreme Court in Indra Sawhney and in Jarnail Singh.” The high court order also specified that Article 16 (4-A) was as “enabling provision” which allowed the state government to provide reservations in promotion in favour of the Scheduled Castes and the Scheduled Tribes. To do so, the court specified, the government does not have to “gather quantifiable data regarding either their backwardness or the adequacy of their representation in services.” 

Following the judgement, four Scheduled Caste employees working in the public works department of the Uttarakhand government approached the High Court of Uttarakhand. They asked the court to direct the state government to promote Scheduled Caste employees by following the previous government orders issued in this regard. On 15 July 2019, the high court directed the state government to implement the reservations in promotions and fill the quota earmarked for Scheduled Castes and Scheduled Tribes. 

By then, the BJP was in power in the state and chose to fight this direction. The BJP-led government filed for a review of the high court’s judgment in Gyan Chand vs State of Uttarakhand. The court corrected its order and said that the government will not have to collect “backwardness” data in light of the Jarnail Singh judgement, but it should collect “inadequacy” data if it wished to give reservation. The court directed the state government to collect “adequacy/inadequacy of representation of the Scheduled Castes and the Scheduled Tribes” in the services within four months and then decide whether to give reservations or not based on that. 

Instead of following the order, the BJP government challenged it through a special leave petition in the Supreme Court in September 2019.  Its attorneys submitted that the high court cannot direct the government to collect quantifiable data on the basis of which a decision to provide reservations would be taken. It is in this case that the court finally delivered its controversial verdict on 7 February this year. They submitted to the court that Uttarakhand government had not passed even a single law on its own law to provide reservations in accordance with M Nagraj and that Section 3(7) of the 1994 Act had already been struck down. 

According to the judgment, Mukul Rohtagi and PS Narasimha, the senior counsels appearing for the BJP-led Uttarakhand government, contended, “There is no fundamental right to claim reservations in appointments or promotions to public posts. There is no constitutional duty on the part of the State Government to provide reservations.” The counsels also urged that, “there is no necessity for collection of any quantifiable data after the Government has taken a decision not to provide reservations. The collection of data … is required only to justify a decision to provide reservation.” 

The Supreme Court accepted almost all the arguments put forth by the state government, and issued the judgment in their favour. It declared that reservations in appointments or promotions to public posts is not a fundamental right. “Not being bound to provide reservations in promotions, the state is not required to justify its decision on the basis of quantifiable data,” the bench held. The bench further specified that even if such inadequacy is brought to the Supreme Court’s notice, it cannot issue a writ to the state government to give reservations. 

Wadekar, the lawyer, thought that Supreme Court judges exercised their power of judicial review selectively. “If, as is held in the Uttarakhand judgment, it is for the state to pass law for reservations and therefore, is the domain of the legislative. Then, why is it that in the M Nagaraj judgement the judiciary imposed an impractical criteria for implementing reservation?” she said. According to her, the judges have misused the doctrine of separation of powers while adjudicating cases on reservations. She said “the court conveniently placed barriers when it had to dilute reservation claiming power of judicial review,”—referring to the M Nagaraj judgment—“but when it had to safeguard reservation provisions it simply took a step back and said it was not its duty, but of state to implement reservation.”

Correction: An earlier version of this article incorrectly stated that the Supreme Court has never had a judge from the Adivasi community. The court has seen one judge from the Adivasi and tribal communities—HK Sema, who was a member of a Naga tribe. The Caravan regrets the error.