In the judgment delivered yesterday in R. Krishnaiah v. Union of India, a Division Bench of the Andhra Pradesh High Court, comprising Chief Justice Madan Lokur and Justice Sanjay Kumar, struck down the two Office Memorandums of the Government of India (dated 22 December 2011) that carved out a 4.5% sub-quota for minorities from the overall 27% OBC quota in Central Government posts and certain central educational institutions. The Court held that there was no material placed before the Court, in terms of establishing any special backwardness, that justified creating a sub-group of religious minorities within the OBC category. The Court highlighted the fact that the sub-group comprising Muslims, Christians, Sikhs, Buddhists and Parsis was not homogenous in terms of backwardness and this fact indicated to the Court that the sub-quota was purely based on religion. The Court also ruled that the Government of India had an obligation to consult the National Commission for Backward Classes (NCBC) under the Act establishing the Commission and that this obligation existed even though the advice of the NCBC was only ‘ordinarily binding’ on the Government under s.9(2) of the NCBC Act. Readers will remember that the Cabinet had approved this measure few days before the Election Commission declared elections in five states, including Uttar Pradesh, in December 2011.
In U.P Power Corporation v. Rajesh Kumar & Ors., a two-judge bench of the Supreme Court (Justices Dipak Misra and Dalveer Bhandari) struck down Rule 8-A of the U.P Government Servants Seniority Rules that provided for consequential seniority. Rule 8-A was inserted pursuant to the 85th Constitutional Amendment which specifically permitted, through Article 16(4A), consequential seniority in promotions. Reservations in promotions had seen a lot of disagreement between the Supreme Court and the Parliament before the Supreme Court in M. Nagaraj v. Union of India (2006) upheld the validity of the 77th, 81st and 85th Constitutional Amendment Acts and ruled that Articles 16(4A)and (4B) were only enabling provisions. As a result, the State can provide for reservations in promotions and attach with it the benefit of ‘consequential seniority’.** However, in U.P Power Corporation the Court has repeated what it held in Nagaraj, that Article 16(4A) is merely an enabling provision and it does not lend automatic validity to all provisions of consequential seniority in the various Rules. The conditions laid out in Nagaraj about determining backwardness, adequacy of representation and efficiency of service will have to be established.
Both decisions make very important moves as far the burden on the State to present empirical data is concerned. The courts have made it clear that the State cannot rely on general data that was collected for other purposes. The State, they say, must collect very specific data that is aimed at providing empirical support for the specific preferential policy in question. In Krishnaiah, the AP High Court held that it was not relevant, for purposes of Articles 15(4) and 16(4), to rely on the Ranganath Mishra Commission Report and a more specific exercise had to be undertaken to demonstrate why the minority groups identified in the memorandums were more backward than other groups in the OBC list. The AP High Court took a similar approach in T Muralidhar Rao v. State of AP (2010) when it struck down the Andhra Pradesh Government’s move to provide a 4.5% quota for OBC Muslims in the State (the Central Government’s measure mentioned above is for all minorities and not just Muslims) by holding that the State Government had relied on secondary data and had not produced specific empirical data that demonstrated how the backwardness and lack of representation of Muslim OBCs was different from that of other OBCs. Similarly in UP Power Corporation, relying on M.Nagaraj, the Supreme Court rejected the claim that there was enough material which indicated a general inadequacy of representation of Scheduled Castes in promotional posts per se. The Court declined to accept this level of generality and said that the relevant unit for determining ‘adequacy of representation’ is the cadre strength.
Such a move raises very important issues for the relationship between the courts and the State on reservations. The courts are clearly looking to provide an extremely narrow meaning to the phrase ‘in the opinion of the State’ in Articles 16(4) and 16(4A) when deciding the adequacy of representation. The courts seem to be saying that the State cannot base its decision on data that might generally indicate inadequacy of representation and it is a very pointed exercise, down to the cadre, that is required.
I do believe that M Nagaraj was wrongly decided, especially in the context of the condition laid down that the State will have to determine backwardness (in very obvious references to the ‘creamy layer’) while taking measures under Article 16(4A), which deals with promotions for Scheduled Castes and Scheduled Tribes exclusively. However, in UP Power Corporation the Supreme Court seems to ignoring that condition laid down in Nagaraj and concentrating only on the requirements of demonstrating ‘adequacy of representation’. Additionally, these cases raise the inevitable question of the deference that Courts must exhibit towards the ‘opinion of the State’ under Article 16 and I think the courts are setting the bar too high.
**Consequential Seniority — Let us assume that A, belonging to the General Category, currently holds Level 3 of a government post and B, appointed under the Scheduled Caste quota, is junior to A in Level 3. When promotions to Level 4 are to be decided, let us assume further, that due to reservations in promotions B has to be promoted to Level 4 before A because there are no Scheduled Caste candidates at a seniority similar to that of A. The question that then arose was whether A would regain seniority over B when she is promoted to Level 4 in due course. ‘Consequential Seniority’ means that A will not regain her seniority and B will now be considered senior to A within Level 4.
Thanks Anup for this point. I had a few thoughts/questions:
1. I haven't read the AP HC judgment yet, but the Muslim quota seems to be problematic for the following reason: sub-classification. Under our current scheme of the logic of reservations, there is no doubt that it is unfair to exclude Muslims solely because of their religion. However the problem seems to be the shoddy way in which the government has gone about it. Our constitution does not permit sub-classification, and rightly so. Otherwise why can't, for instance, the Gujjars claim to be a special class and other groups as well? If there is sub-classification, it must be all the way down. Why only for Muslims? The smartest way seems to be the Kerala way: to allow Muslims to be included within the OBC list.
2. I think Nagaraj is a tragic decision – because law becomes politics by other means. The entire purpose of public employment reservations was to create a level playing field. Reservations in promotions, consequential seniority etc, disturb that normative goal and frankly, in my view, rest on a very peculiar notion of equality.
Also, Arun, sorry for disagreeing, but I think that the bar actually ought to be very high. Reservations are important instruments of social justice, and are needed in societies like India. But we must recognize that they also have potential for abuse, that interest group capture can certainly take place, and that the case for special treatment must always be carefully made out. Part of the tragedy, even among liberals in India, is that we adopt an 'all or nothing' approach to reservations. We simply ask whether the measure is good or bad rather than which groups deserve it, and whether the case for special treatment is actually made out. Notice, for instance, how we've managed to permit same treatment for SC/STs and OBCs. The Court's call for careful evidence is important – it is it's job. For special treatment to be permissible in any instance, the burden must be on the state to demonstrate its necessity.
Thanks for the comments, Madhav.
In response:
i) On the question of permissibility of sub-classification: Yes, the Supreme Court has ruled in Chinnaiah v. State of AP that sub-classification of Scheduled Castes is unconstitutional but I think that is an incorrect decision. However, the Supreme Court, starting with Indra Sawhney, has ruled that sub-classification of OBCs into Most Backward Classes and those outside MBCs is constitutionally permissible. Certain Muslim groups (castes?) comprising a very significant proportion of the Muslim population are included in the Central OBC list and the OBC lists for most other states.
The logic of sub-classification in this instance (and I think the Govt is far better off restricting it to Muslims and not including other minorities) is that Muslims OBCs, by virtue of being tagged on similar terms with all other OBCs, have not really benefitted from the 27% OBC reservation. I do not think Muslim OBCs can compete with Hindu OBCs on equal terms and are bound to be left behind.
ii) I am not arguing for a 'all-or-nothing' situation and neither am I arguing that the 'opinion of the State' under Article 16(4) can be based without reference to any evidence whatsoever. I am interested in a slightly more subtle point. I am interested in the nature and intensity of the evidence that the Court requires. In this instance the Court says, the cadre must be the unit of reference for determining if there is 'adequate representation'. My point is, is the Court justified in prescribing such a narrow unit? Why cant the State look at the entire service, or may be an entire group of services or may be even public employment per se to determine 'adequacy of representation'.
iii) I do not think a level playing field is achieved by providing reservations only at the entry level in public employment. But then, neither do I think that a level playing field is achieved by only providing reservations. I have no doubts that reservations by themselves will not achieve transformative equality but that does not mean that we should not try to give it the most effective role possible.
This is how I view the AP HC judgment drama. In my mind, it seems unfair to exclude Muslims from reservations only because of their religion. I see no justification for that. But the problem with sub-classification is this – what stops other groups, like Gujjars, from asking for sub-classification. You might bite the bullet and say nothing, and say that let a million groups all be sub-classified. The problem with that seems to be that it's an idea very antithetical to citizenship: the entire enterprise of the Constitution then becomes compulsory identities. But it's a further issue – and this relates to Muslim reservations – I see your point that Muslim OBCs cannot compete with Hindu OBCs, and that's a very valid point. But then don't we need to think a bit further about what we think reservations are doing? That is to say, if Muslim sub-classification basically means that we are treating Muslims as an independent class then they are a separate class on the sole basis of their religion – we are including them only because of their religion. That may be fine – but we need to investigate the argument for it. If the argument is discrimination, then reservations have no place, the answer is rights. As Rochana Bajpai new book has shown, religious minorities were granted protection through rights rather than representation; that's the core liberal idea because it trying to emphasize that people need not speak and be known only through their religion. The trouble here is that just as it is absurd to exclude Muslims only on grounds of their religion; we need a clear argument for why Muslims need reservations only on groups of their religion.
Just to be clear once again — I am not arguing that sub-classification of OBCs for Muslims must be purel a function of the intensity of the "demand" for it. There State has to show some basis and a lot of social science evidence that has been gathered about the marginalisation of Muslims in public employment.
Yes, a sub-quota for Muslims would mean that we are treating OBC Muslims as a separate class. And there is good reason for it. The nature and intensity of their exclusion is different from that of other OBCs. And this is where the Gujjar demand is likely to fail. And the social science evidence is very clear that the presence of Muslims in higher education and public employment is abysmal.
I do not think questions of discrimination can be solved by resorting to rights exclusively and that reservations have no place. Anti-discrimination laws do play a role but they do not take us far enough and I do not think rights by themselves can be the answer. Ensuring 'presence' (to borrow the term from Anne Philips and I am more comfortable with it than 'representation') is crucial to addressing marginalisation.
On the issue of the Constituent Assembly Debates, minority rights and Rochana Bajpai's book 'Debating Difference' — the CADs clearly demonstrate how what you refer to as 'representation' was agreed upon for Muslims in the first half of the sittings of the CA and is even reflected in the Draft Constitution that was submitted to Rajendra Prasad in February 1948. It was in the context of the violence surrounding partition that the CA revisits and overturns these decisions and limits the protection to 'rights'.
Thanks Anup for this clarification. I agree about the abysmal situation of Muslims; there can be no denying that. I also believe, as I mentioned earlier, that within our current framework of reservations, Muslims cannot be excluded purely on grounds of their religion. My short point is that the state needs to make a case for Muslims beings a separate class – I do not suggest that the case cannot be made or that it will fail – but simply that the AP HC judgment seems to chide the state for not making the case; and as an analytic point, that seems fair.
I also believe that reservations have a place: the question is for what purpose, for whom, on what criterion, and for how long. The bipolarity of the debate does no only any good. I referred to the Rochana's book only because I think the original founding idea – which both Ambedkar and Nehru got – about the power of state-created social categories to be entrenched and affirmed when they are recognized needs to be borne in mind, whenever we think of the past and future of reservations. We have all learned, via the work of people like Nick Dirks, how categories can destroy social life. The important challenge is to see that a valuable normative principle like affirmative action is not used in twisted in its use in such a way that carries us further and further from the ideal. (Please do not read this to imply that Muslims should not be given reservations. As I've said, under our present paradigm, they certainly should. The challenging questions are different.)
Parmanand Pandey
The whole argument for quota within quota is flawed, that too, for Muslims. Go through the debates of the Constituent Assembly and every doubt will be cleared. This affirmative action is for the socially backward people, who have been denied justice by the forward caste Hindus for centuries. There is no other religion that provides legitimacy for the horrible caste system except Hinduism. Hindu society is divided in hundreds of castes and as a result of it a large segment was denied the social justice. So much so, some of them were being treated worst than animals. Even those who claimed to be part of the Hindu society were denied entry into the temples. Persons like Mahatma Gandhi had to wage struggle for their entry to the temples. Hindu society has been discriminating against lesser among them only on the basis of the caste. It was considered to be a guilt rather a sin to have been born in some castes. The reservation, therefore, was a constitutional guarantee to uplift that large section that was deprived of the respect because of the berth.
There is no gainsaying that a huge number of Brahmins and Rajputs are also very indigent but their social respect remains intact. They hardly have to face any social stigma, although they are economically ver y poor. Among Muslims and Christians there is no caste system. Any Muslim/Christian can marry with any Muslum/Christian boy or girl regardless of the profession, but that is not so among Hindus. Since there is no provision for economic backwardness, how can reservation be extended to Muslim and Christians? It may be noted here that Mandal Commission has included certain professions of Muslims as their castes and they are getting the benefits as per Indra Sawhney decision. Even before Indra Sawhney there were some States, which had extended benefits to some professions (read castes) of Muslims.
In the light of and on the strength of the constitutional provisions, the decision of the Andhra Pradesh High Court is fully valid and justified. If anybody wants to provide reservation on the basis of economic backwardness this sub quota has to be enlarged and extended to poor among Hindus as well. And this can be done only by the constitutional amendments.
No matter how much I try to justify the clause of consequential seniority in my mind I couldn't do so. I still feel it is unconstitutional. Instead of providing an fool proof promotion system where there is no chance for discrimination why is the government resorting to unjust measures. Why cant extra years of service be added so that sc, st employees in public service can be brought on par with unreserved candidates. How can one stand the consequential seniority. How can one stand if his junior gets promotion faster. Justice my lord where is it?