The casteless outcastes of Indian society, subjected for centuries to unfathomable social suppression and economic depravity have been compiled together as the Scheduled Castes and Scheduled Tribes (hereinafter “SC/ST”) under the Constitution. Their plight has been described in various ways. Rabindranath Tagore described it as a “gigantic cold-blooded repression“. Dr. B.R. Ambedkar termed it as a system of “graded inequality”. Swami Vivekananda spoke for Shudra Raj and questioned the heredity claims of the Brahmanas, while calling out to “Arise, awake and stop not till the goal is reached“.To ameliorate the lot of these SC/ST’s reservation in promotion has been provided for. The issue can be broadly classified in two categories, namely, the pre and post Indra Sawhney (1992) eras.
the field for about 30 years, Justice Reddy placed reliance on the observation in Rangachari that there was “the risk” involved in sacrificing efficiency of administration. Therefore, the 9 Judge Bench in Indra Sawhney took the view that there was no justification to multiply “the risk” which would be the consequence of holding that reservation can be provided in matters of promotion. It is submitted that the observation in Rangachari was in the context of Article 335 and the obligation of the State to consider the claims of the backward classes consistently with the maintenance of the efficiency of administration. Rangachari only required that “the risk involved in sacrificing the efficiency of administration must always be borne in mind when any State sets about making a provision for reservation of appointments or posts.” The said observation is the mandate set out under Article 335 of the Constitution and ought not to have been the basis for negating the law as it stood for over three decades. Further, Indra Sawhney went on to permit reservation in matters of direct recruitment even in higher levels of administration and not merely at the level of Class III and Class IV. The said view begged the question that if reservation by way of direct recruitment was permissible for Class I and Class II posts, then why not by way of promotion?
The 77th Constitutional Amendment (1995) and the 85th Constitutional Amendment (2001)
Indra Sawhney upheld reservations already made and while holding that it’s aforesaid decision of striking down reservations shall operate only prospectively, it also permitted reservations which had already been provided in matters of promotion to continue to operate for a period of five years from that date. In the intervening period, Article 16(4A) was introduced by way of the 77th Constitutional Amendment w.e.f. 17.6.1995 and reservation in promotion was bought back. Consequential seniority was also provided by way of the 85th Constitutional Amendment given effect from 17.6.1995. The said amendments became the subject matter of challenge before the Constitution Bench in Nagaraj (2006). The amendments were upheld but with the additional mandate that the State will have to show the existence backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation in promotions. While Indra Sawhney required that the State can utilise the material it already had in it’s possession, Nagaraj laid down that the State “has to collect” quantifiable data. This was subsequently interpreted by the Supreme Court to mean that a fresh exercise had to be carried out to collect quantifiable data to determine inadequacy of representation. This is contrary to Indra Sawhney as explained hereinafter. The requirement of establishing backwardness of SC’s and ST’s has been struck down in Jarnail Singh (2018) since SC’s and ST’s are “indubitably” backward as per Indra Sawhney.