(In Part II of this series, Karan Lahiri continues his argument about the interpretation of Article 16 of the Constitution)

—

In the last post, I introduced the concept of “power coupled with duty”. In this part, I talk about a batch of writ petitions pending before the Supreme Court, emerging from the State of U.P. (the lead petition being W.P. © 273/2015 – Sewa Lal & Ors. v State of UP), where the issue of “power coupled with duty” is likely to be looked at once again. This second blog post gives some background on how these petitions came to be filed, because the factual context actually demonstrates why reading Article 16 as a hybrid provision, containing both a power and a duty, is the most just and equitable solution. At the end of this part, I look at how the current reading of Article 16 creates an asymmetry problem, and I then provide a brief breakdown of what I believe to be the correct reading of Article 16 as a hybrid power-plus-duty provision.

To place this in context, it may be remembered that in Indra Sawhney, it was held that Article 16(4), as it then stood, was not wide enough to bring within its fold reservation in matters of promotion. However, the Court declared that this would not affect promotions that had already been made and, in fact, granted the additional protection that where reservations have already been provided for in Central or State Services, the same position may continue for a further period of five years. Thereafter, Article 16(4A) was inserted vide the Constitution (Seventy-seventh) Amendment Act, 1995, which did provide for reservations in promotions. To recapitulate, this provision presently reads:

“(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.”

It was after this that the Supreme Court’s judgment in M. Nagaraj was rendered, in which the Court, while upholding the constitutional validity of the amendment, also set out certain conditions precedent for the State to implement ameliorative measures under Articles 16(4A), as also 16(4B) (which deals with carrying forward of vacancies reserved for backward classes/SCs/STs). It was observed –

“…There are numerous petitions pending in this Court in which reservations made under State enactments have been challenged as excessive. The extent of reservation has to be decided on the facts of each case… Therefore, in each case the Court has got to be satisfied that the State has exercised its opinion in making reservations in promotions for SCs and STs and for which the State concerned will have to place before the Court the requisite quantifiable data in each case and satisfy the Court that such reservations became necessary on account of inadequacy of representation of SCs/STs in a particular class or classes of posts without affecting general efficiency of service as mandated under Article 335 of the Constitution.

…

However, in this case, as stated above, the main issue concerns the “extent of reservation”. In this regard the State concerned will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SCs/STs in matters of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335…” [Emphasis supplied]

Therefore, M. Nagaraj laid down three requirements: –

1. General efficiency of the service must not be compromised. This is traceable to Article 335 of the Constitution.
2. The State must come to the conclusion that the groups in question are not adequately represented in the service, based on quantifiable data. This flows from Article 16(4A) itself.
3. The State, based on quantifiable data, must come to the conclusion that the class benefitting from the ameliorative measure is “backward”.

While this is a topic to which an entirely separate blog post can be devoted, I wish to point out at this juncture that this third requirement does not flow from the text of Article 16(4A), and this constitutes a major error in M. Nagaraj. We need to remember that Nagaraj was dealing with Article 16(4A), which speaks of “Scheduled Castes and Scheduled Tribes”, and not “backward classes”. Unlike reservations under Article 16(4), which categorically mentions ‘backward class’ (the relevant part of which reads “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens), the State did not have to undertake a separate exercise to determine “backwardness” for the purposes of Article 16(4A), because Article 16(4A) allowed for reservation in promotions only for SCs/STs (Nothing in this article shall prevent the State from making any provision… in favour of the Scheduled Castes and the Scheduled Tribes). As per both N.M. Thomas and Indra Sawhney, SCs/STs are presumed to be backward classes and, in E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394, they have correctly been identified as “not merely backward but the backwardmost.”

 This error in Nagaraj was compounded in U.P. Power Corporation Ltd. v. Rajesh Kumar & Ors., (2012) 7 SCC 1. In this case, the Court was examining the constitutionality of Section 3(7) of the U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, and Rule 8-A of the U.P. Government Servants Seniority (Third Amendment) Rules, 2007. Section 3(7) preserved pre-existing Government Orders in U.P. that provided for reservation in promotion. Rule 8-A provided for consequential seniority.

As it was found that no quantifiable data had been collected by the State of U.P. for effectuating reservation in promotion and making the rule of consequential seniority applicable, the Court held: –

“86. We are of the firm view that a fresh exercise in the light of the judgment of the Constitution Bench in M. Nagaraj is a categorical imperative. The stand that the constitutional amendments have facilitated the reservation in promotion with consequential seniority and have given the stamp of approval to the Act and the Rules cannot withstand close scrutiny inasmuch as the Constitution Bench has clearly opined that Articles 16(4-A) and 16(4-B) are enabling provisions and the State can make provisions for the same on certain basis or foundation. The conditions precedent have not been satisfied. No exercise has been undertaken. What has been argued with vehemence is that it is not necessary as the concept of reservation in promotion was already in vogue. We are unable to accept the said submission, for when the provisions of the Constitution are treated valid with certain conditions or riders, it becomes incumbent on the part of the State to appreciate and apply the test so that its amendments can be tested and withstand the scrutiny on parameters laid down therein.

 … In the ultimate analysis, we conclude and hold that Section 3(7) of the 1994 Act and Rule 8-A of the 2007 Rules are ultra vires as they run counter to the dictum in M. Nagaraj. Any promotion that has been given on the dictum of Indra Sawhney and without the aid or assistance of Section 3(7) and Rule 8-A shall remain undisturbed.” [Emphasis supplied]

The result of this judgment was, essentially, that all SC/ST candidates in the State services in U.P. would be subjected to reversion, i.e. they would be demoted to the posts they held as on 15.11.1997 (when the five year period of protection provided by Indra Sawhney ended), as the provisions on the basis of which they had been promoted had been effectively struck down with retrospective effect (reaching all the way back to 1997).

The nature of the “exercise” contemplated is set out in Paragraph 81, where Justice Misra summarized the ratio of M. Nagaraj: –

“(v) The State has to form its opinion on the quantifiable data regarding adequacy of representation. Clause (4-A) of Article 16 is an enabling provision. It gives freedom to the State to provide for reservation in matters of promotion. Clause (4-A) of Article 16 applies only to SCs and STs. The said clause is carved out of Article 16(4-A). Therefore, clause (4-A) will be governed by the two compelling reasons—“backwardness” and “inadequacy of representation”, as mentioned in Article 16(4). If the said two reasons do not exist, then the enabling provision cannot be enforced.” [Emphasis supplied]

There are two serious errors in this judgment. The first is a doctrinal error, which has already been pointed out, namely that no separate exercise to determine “backwardness” is required for SCs/STs, as the backwardness is presumed in the case of Schedule Castes and Scheduled Tribes, as per previous judgments of the Court.

The second error is based on equity, and is useful for understanding why Article 16 should be treated as a hybrid containing both a power and a duty. If, indeed, quantifiable data is to be collected for applying Articles 16(4A) and 16(4B), then, surely, even if the Court’s ruling is not prospectively applied (to protect those promoted prior in time due to the State’s errors), quantifiable data demonstrating that SCs/STs are adequately represented in various echelons of the State services would be a prerequisite for reversion. Assuming that SCs/STs are overrepresented in the higher echelons of the State services because of the State’s failure to collect data, the resultant reversion, in the absence of data, would probably lead to a situation where SCs/STs are underrepresented in the higher posts. The Court, however, failed to clarify this and, instead, in Paragraph 87, only stated that those promotions protected by the Indra Sawhney judgment would remain undisturbed.

Inevitably, contempt petitions came to be filed, as the Govt. of U.P. failed to either seek clarifications of the Supreme Court’s judgment, or take steps to collect “quantifiable data”. On 05.07.2013, the Supreme Court issued notice in the lead petition [Contempt Petition (C) No. 214/2013]. Instead of working to collect the data, the Govt. of U.P. instead took hasty steps to revert all those in the State services to the posts they held as on 15.11.1997. As recorded in the Court’s order of 13.10.2015 in Contempt Petition (C) No. 214/2013, 15,226 persons have been reverted as a result, all without the State having done anything to compile the data.

In this background, a number of SC/ST personnel, who have been reverted, have filed Writ Petitions before the Supreme Court, and some of these petition contain a positive averment to the effect that there is a “power coupled with a duty” in Article 16 to level the playing field.

Let us now consider the arguments. I contend that the problem with the way Article 16 [particularly 16(4), (4A) and (4B)] is read currently is that it is essentially asymmetrical. For ameliorative measures under these provisions, quantifiable data on backwardness and inadequacy of representation is a prerequisite, contributing to the formation of an opinion by the State. On the other hand, for reversion, no such data needs to be collected, and no opinion needs to be formed. Similarly, the current law on Article 16 allows the State to completely ignore the question of whether backward classes, SCs and STs are adequately represented in public services, by simply omitting to collect data, which is required for the formation of an “opinion” under Article 16(4), (4A) and (4B). Therefore, the State can essentially omit the entire process of forming an “opinion”, by refusing to collect the necessary data. There is a hurdle created to pull up backward groups, but none for pulling them down, or for ignoring them entirely. This, I believe, is inconsistent with the equality code of our Constitution, and Article 16 itself contains no textual basis for such asymmetry. It is this asymmetry problem that can be remedied if the Supreme Court recognizes the fact that Article 16 contains within it an enabling power coupled with a positive duty.

While I will elaborate on this in later posts, this is how I conceive of the hybrid powers and duties contained in Article 16: –

1. There is a positive duty on the State to periodically collect the data required for the formation of an opinion under Articles 16(4), 16(4A) and 16(4B).
2. Once the data is collected, it is the duty of the State to apply its mind on backwardness, adequacy of representation and efficiency (i.e. the Nagaraj troika).
3. In applying its mind, the State has discretion in the line-drawing exercise involved in deciding which group is backward, what degree of representation is adequate, and what is the optimum balance in the interest of efficiency.
4. Based on the above, the State has the discretion to decide if any ameliorative measures are required. As discussed in Indra Sawhney, this need not necessarily be through reservation (or reservation in promotion), but through lesser concessions as well. Therefore, the State’s discretion would also extend to deciding the nature of ameliorative measure.

Therefore, I argue for a reading of Article 16 where the State has discretion in deciding whether ameliorative measure are required for backward classes/SCs/STs, and the extent and nature of of those measures, but, prior to that, the State would bear the positive responsibility of collecting data (as per Nagaraj) and then forming an “opinion”, whatever that opinion may be. In other words, the choice that is eliminated is complete inaction on the part of the State to apply its mind to the issue of adequacy of representation of backward groups in the State services, whether that inaction is a symptom of policy paralysis or political expediency.

(The author is a Supreme Court advocate)