SC verdict upholding quotas in promotions welcome, but top court must also address low representation of SCs, STs in judiciary
Why are questions of promotion and seniority prompting bitter and long-drawn out court battles?
When the Supreme Court's own appointment and promotion system is beset with non-transparency, it is somewhat hard to take its soaring rhetoric in BK Pavitra – II seriously.
A cynical view would to be treat the BK Pavitra – II judgment as a nice essay written to no real effect.
The less cynical and more optimistic view would be to hope that the BK Pavitra-II judgment might prompt honest soul-searching in the judiciary.
Just the facts and history in the Supreme Court’s judgment this month in BK Pavitra vs State of Karnataka (2019) make for exhausting reading.
It all starts in 1978, when Karnataka introduced reservations in promotions for Scheduled Caste and Scheduled Tribe communities. In doing so, it was one of many states in India to have undertaken this move which has seen multiple rounds of litigation in the Supreme Court and multiple amendments to the Constitution.
The latest judgement, upholding the law granting reservation in promotions in government jobs in Karnataka, and consequential seniority to such promotees, is actually the second round of litigation from the state on just this issue. In the first round (BK Pavitra – I, 2017), the Supreme Court had struck down a 2002 reservation law passed by Karnataka which guaranteed consequential seniority (more on this later) to those promoted to reserved jobs, by relying upon the constitution bench judgement in M Nagaraj v State of Karnataka (2006). In another subsequent case (Jarnail Singh v Lacchmi Narain Gupta, 2018) the correctness of the top court’s judgment in Nagaraj was questioned and the Supreme Court clarified certain aspects of the ruling. Following this, a fresh law was passed by Karnataka in 2017, providing reservations in promotion and consequential seniority which was challenged in this particular case that I will refer to as BK Pavitra – II.
Why are questions of promotion and seniority prompting such bitter and long-drawn out court battles? After all, it is not a matter of exclusive access to scarce government jobs but the conditions of service of those who already have these jobs. Seniority in government jobs is not a trifling matter however – it is an important consideration for further promotions and eventual access to the topmost posts in the administration. It is always a great source of resentment in government service to find someone more “junior” having leapfrogged over oneself to a better post. With reservations in promotions, and the reserved category promotees getting seniority over those not promoted from the general category, the resentment can reach epic proportions.
A nine-judge bench of the Supreme Court in Indra Sawhney v Union of India (1992) had held reservations in promotion to be unconstitutional, but this was undone by the 77th amendment to the Constitution. When the 77th amendment was challenged in Nagaraj, it was upheld but with two caveats – that reservations in promotion must be carried out on the basis of objective material to show under-representation and the “creamy layer” must be excluded. However, in Jarnail Singh, it was clarified that the requirement to show under-representation was not mandatory though the exclusion of the creamy layer was mandated.
On the basis of this clause, the Supreme Court in BK Pavitra – II upheld the 2017 Karnataka law. While finding the Act to be based on not just the law, but also the need to rectify the lack of SC/ST representation, the court also dismissed the contention that reservation in promotion is somehow antithetical to the needs of “efficiency in administration” – an express requirement under Article 335 of the Constitution. In outlining what it means by “efficiency”, the Supreme Court also ties it to the concept of substantive equality in an interesting passage which bears repeating in full:
“The benchmark for the efficiency of administration is not some disembodied, abstract ideal measured by the performance of a qualified open category candidate. Efficiency of administration in the affairs of the Union or of a State must be defined in an inclusive sense, where diverse segments of society find representation as a true aspiration of governance by and for the people.”
This interpretation is not novel but still relevant in the present circumstances. The BK Pavitra–II judgment, therefore, suggests that the Supreme Court gets the purpose of reservations in the context of government jobs. That they see this as not some charity to be handed out to oppressed and excluded groups of citizens but something that is inherent and essential to the constitutional vision of equality in the constitution.
Or do they?
The series of events around the sexual harassment allegations against CJI Ranjan Gogoi tells us that the court (and not just a few stray judges) seems to think that the Constitution, law, and rules, apply to everyone else but them. That things like the principles of natural justice, fairness, transparency, among other things are to be enforced against the government and other institutions leaving the court to operate in a rarefied realm untouched by any of these.
Likewise are the questions of representation in the judiciary. While the subordinate judiciary (namely the level below the high courts) are governed by state government laws which mandate some form of reservations in appointment, the higher judiciary, namely the high courts and the Supreme Court have resisted all calls for greater representation and diversity among their ranks.
As a recent study by the Vidhi Centre for Legal Policy has shown, barely 10 percent of high court judges are women, even though 27 percent of judges in the subordinate judiciary are. While SCs form 14 percent of all subordinate judiciary judges and STs, 12 percent, OBCs still remain under-represented at just 14 percent. The numbers are, however, worse for the higher judiciary. According to the last available figures, from 2011, there were only a total of 21 judges from the SC/ST communities in the high courts out of around 600 judges in total. There has been only one judge belonging to the Dalit community appointed to the Supreme Court in the last two decades. If Justice BR Gavai’s elevation goes through, that will take the number to two.
The collegium resolution recommending the elevation of Justice Gavai seems to suggest that the Supreme Court is at least aware of the need to increase the representation of SC/ST/OBC communities among the higher judiciary. But given the structure of the appointment system that the court has created and follows, it is apparent that it thinks tokenism is the same as representation.
Nearly 70 percent of high court judgeships are “reserved” de facto for the members of the Bar while only 30 percent are “reserved” for members of the subordinate judiciary. This is not a formal reservation but as I wrote in 2016 for the Economic and Political Weekly, this has become the practice under the collegium system of appointment of judges. Given that the Bar is dominated by a few castes who have the networks and access to stay in practice long enough, this effectively results in a higher judiciary dominated by savarna men who go on to appoint more savarna men in a self-perpetuating system. Witness the Supreme Court collegium relaxing its age criteria to recommend Advocate Vishal Mishra (a relative of Justice Arun Mishra of the Supreme Court) to judgeship in Madhya Pradesh High Court.
When its own appointment and promotion system is beset with non-transparency, favouritism, and nepotism, it is somewhat hard to take the Supreme Court’s soaring rhetoric in BK Pavitra – II seriously. A cynical view would to be treat the BK Pavitra – II judgment as a nice essay written to no real effect since the Karnataka state government gets to keep doing its good work and the petitioners continue to do what they do. The less cynical and more optimistic view would be to hope that the BK Pavitra-II judgment might prompt honest soul-searching in the judiciary as to whether it has been able to uphold the constitutional principles it claims to espouse in this case.
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