The Supreme Court ruled on Wednesday that there was no need to refer a 2006 verdict delivered by a five-judge bench on the matter of implementing reservations in promotions to a seven-judge constitutional bench. The five-judge bench headed by Chief Justice Dipak Mishra has, however, walked a fine line in respect of the earlier judgement and in the process seems to have left some room for ambiguity.
Let us first take a look at the 2006 judgment. The five-judge bench hearing the matter did two things. First, in relation to earlier pronouncements of the Supreme Court, it held that three amendments facilitating reservations in promotions, and matters pertaining to seniority arising from them, were valid. At the same time, it imposed certain conditions that had to be met while providing such reservations.
First, it held that the relevant government had to collect data on the backwardness of the scheduled castes (SCs) and scheduled tribes (STs) before making provisions for reservations in promotions; second, it had held that the government must provide data on the inadequacy of representation at different levels; and third, it had mandated that the government provide facts about administrative efficiency in the context of reservations in promotions.
In other words, the Supreme Court had in 2006 in the ‘Nagaraj case’ conceptually green-lighted the idea of reservations, while imposing difficult conditions for the implementation of a policy on such reservations.
In response to a bunch of petitions asking for the referral of the matter to a seven-judge constitutional bench, the 2018 bench overruled the plea. Nevertheless, it made some observations that changes the complexion of the case. First, it overruled the condition that the government must collect data on backwardness before proceeding with reservations.
Second, it ruled, in line with orders passed in June allowing the government to proceed with reservations until the final disposal of the case, that the 2006 verdict stands in other respects, meaning reservations can be made in accordance with law, which, in this case, is the law as laid down by the 2006 judgment. It did refer to the other two conditions about the government having to provide facts about under-representation and the impact on administrative efficiency, but made no contextual ruling. In any case, these conditions are covered by the ruling that reservations can be made in accordance with the existing laws.
Simultaneously, however, it discountenanced the Union government’s proportionality argument that the test for under-representation should be the proportion of SCs and STs to the total population. This seems to be of a piece with the ruling that data about backwardness need not be collected.
This is where there is a hint of ambiguity, if only because no specific reference has been made to two conditions. But, on balance, the position would appear to be as follows: The government can go ahead with a policy on reservations in promotions, also entailing consequent seniority, without having to back it with data on backwardness, but it would still have to spell out, factually, the position with regard to under-representation and administrative efficiency.
At the same time, some reports have pointed out, neither the 2006 judgment nor the one passed on Wednesday have made it mandatory for the Centre to actually implement a holistic policy on reservations in promotions for SCs and STs, but in neither case were the respective benches called upon to do so. That point is, therefore, irrelevant. We shall revert to it.
It is often tempting to look for victor and vanquished in these kinds of situations. But when the contest is between two ideas – in this case, constitutionality and the need to promote social justice – this kind of perspective is meaningless. We can, thus, with some justification, conclude that while some fundamental judicial principles have been respected, a policy of reservations in promotions has been further facilitated by freeing the government from the need for providing updated status reports on backwardness, which must necessarily be dynamic. The most important judicial principle, it is being said, that has been observed is the refusal to refer to a larger bench a judgment that suffers from no obvious infirmities.
Matters now rest with the executive. The judiciary has often been accused of needless ‘activism’, especially so in recent times, to the point of encroaching on the domains of the other two arms of the state – the legislature and the executive.
By refraining from doing so in this case, wisely it would appear, it has left the executive arm with no place to hide. Its failure or success in devising and implementing a consistent policy will earn the executives, at the Centre and in the states, opprobrium or felicitation. In the wake of the fiasco over the ‘dilution’ of the Scheduled Castes and Tribes (Prevention of Atrocities) Act, the executive, especially the central government, will have to formulate a consistent and proactive policy. With the judicial process out of the way, and elections fast approaching, pressure will no doubt be brought to bear by Dalits and tribal people.
Updated Date: Sep 26, 2018 22:06 PM