Reservations are not automatic
A Writ is a document under the seal of the court commanding the “state” to do something or not do something. The High Courts and the Supreme Court exercise the power to issue these highly prerogative Writs. Any applicant before the Supreme Court praying for a writ should satisfy the court that there is an infringement of a Fundamental Right and that the State has failed to discharge its constitutional or statutory obligation.
For example, in the Suresh Chand Case (on which the Supreme Court gave its judgment on March 11 this year) the petitioners approached the apex court under Article 32 to command the State to appropriately enforce a Constitutional mandate, contained in Article 16(4)A, 16(4-B): “The relief in the present case, when appositely appreciated, is tantamount to a prayer for issue of Mandamus to take a step forward, by framing a rule or regulation for the purpose of Reservations for Scheduled Castes and Scheduled Tribes in matters of promotions,” Justice Dipak Misra observed, and declined relief.
The judgment of the court is on settled legal parameters of judicial intervention. Art 16(4) provides for reservation in appointments and postings in favour of Backward Class citizens which, “in the opinion of the State, is not adequately represented in the Services under the State.”
A 50 per cent reservation is the outer limit. That does not mean that, if in a given case reservation did not cross the outer limit of 50 per cent, it should be considered as not adequately represented. The opinion of the State is a matter of subjective satisfaction which the State has to arrive at keeping in mind the nature of posts, requirements and other related factors.
No court will compel the State to act in a particular manner. Reacting to some blind demands four decades ago for setting up a Bench of the Supreme Court in the South, Justice Krishna Iyer remarked that a case should be made out first with facts and figures of the cases filed in the past, the cases that are being filed, the pending cases, and the number of cases disposed of from the Southern parts and the other parts of the country, to press the demand. In order to demand of the State through a court for affirmative action for Reservations in matters of promotion, a case should be made out before the State first, to satisfy the “inadequacy” of representation of the reserved categories in promotions and posts. The State should then be allowed to form its opinion.
Reservations are not automatic and are not matters of Right of a citizen. Nor is this an obligation on the State.
S.S. Prasad, The writer is a Senior Advocate at the Hyderabad High Court
Need is to ensure justice for all
Indian Constitution recognises that two sections of the society are the most suppressed and oppressed — the SCs and the STs, who have historically been excluded from the mainstream of the Indian society. In order to help them overcome the strains of past discrimination, these groups now have a reserved share of seats in Parliament and State legislatures. In spite of political reservations, reservation of seats in educational institutions and reservation of government jobs for SCs and STs, there is no considerable and positive impact on the poverty levels and social elevation of these communities all these years after Independence.
Reservation in promotions is dependent on the inadequacy of representation of members of SC and ST, subject to the condition of ascertaining whether such a reservation is required or not. In a recent judgment, the Supreme Court has ruled that there could be no quota for SC-ST employees for top posts in public sector banks but reservation is permissible for the posts from scale I to scale VI. However, in view of injustice being done to these communities, there exists Constitutional arrangements for reservation in promotions so as to enable these communities elevate themselves to higher levels and share opportunities in the decision-making bodies of various departments, bank, organisations etc. There thus is scope for making suitable amendments under Article 16 (4-a).
It is evident that there isn’t any adequate representation of SC/ST employees in the higher cadre posts. By not providing such reservation, the government will be failing in its duty to ensure social justice to all.
The judgment ruling out reservation in promotions shall have far-reaching adverse consequences on the SC and ST employees. It would block their opportunity to occupy higher cadre positions. The Confidential Reports system is already blocking opportunities for promotions for those from disadvantaged sections, amid feelings that they are discriminated against by their superiors. Political reservations are meant to bring the downtrodden people to the social mainstream, to be on equal footing with others, but there have so far been no special or additional grants under MPLADS to provide certain basic amenities to these neglected segments..
I strongly feel that there is justification for taking up the issue of reservation in promotions suo-motu on the part of the higher judiciary and ensure justice to the socially disadvantaged sections. Then only will real justice for the SC and ST communities, as was visualised by the father of Indian Constitution Dr BR Ambedkar, be done to them.
Prof A. Seetaram Naik, The writer is a Member of Parliament from Mahabubabad.
