SC Verdict on Reservation in Promotions

- Indresh Maikhuri

THE verdict pronounced by the Supreme Court on reservation in promotions has raised fresh questions on the stand of the ruling powers as well as the judiciary towards social justice. ‘Reservation in promotions is not a fundamental right’: these are the much talked about words of the SC verdict which are making headlines. But if we study the verdict, the matter is beyond and above this. The stand adopted in this case by the Central and Uttarakhand BJP governments is an attempt to cover up their deeds with lies. The BJP should state clearly that it does not believe in any principle of social justice; and that whenever it gets an opportunity it will harm, or contribute to harm, social justice.

On 7 February 2020 the Supreme Court, pronouncing its verdict in the case Mukesh Kumar & others Vs. Government of Uttarakhand, ended reservation in promotions. In its verdict the Supreme Court said that claiming reservation in promotions is not a fundamental right. Citing precedents from earlier cases, the Division Bench of Justice L Nageshwara Rao and Justice Hemant Gupta said that Articles 16 (4) and 16 (4) (A) are enabling provisions which give the State government discretionary powers to consider promotion if required. The Supreme Court said that the established law is that the State government cannot be ordered to give reservation. The Court also said that the State government is not bound to provide reservation in promotions for Scheduled Castes and Scheduled Tribes; but the Court added that if the State government does so, it should have sufficient quantitative data to show that reservation is necessary for adequate representation of these sections. Thus, the Supreme Court has put the ball in the State government’s court. The Court refused to issue any kind of mandamus in this matter.

A strange aspect of this SC verdict is that it says quantitative data is necessary for giving reservation. However, if the government decides not to give reservation in promotions they do not have to show any quantitative data to prove that there is adequate representation of SC/ST in government services. The Court even goes so far as to say that even if a case of under-representation of SC/ST in public services is brought to its notice, the Court cannot issue a mandamus for giving reservation to SC/ST. This is a redundancy. If a particular section or persons from particular castes do not get adequate representation in government services they will go to the Court and the Court has decided beforehand that it will not issue any mandamus, what options are remaining for obtaining justice? Government reports in Uttarakhand tell us that SC/ST do not have adequate representation in government services. But where can they go to seek justice if the Supreme Court has already washed its hands of issuing any directive in this matter?

When questioned at the national level on this matter, the Central and Uttarakhand State BJP governments chose to answer with a mixture of half-truths and lies. Minister for Social Justice and Empowerment Thavar Chand Gehlot in Parliament and Chief Minister Trivendra Singh Rawat in Dehradun said that it was the Congress government that took the decision to end reservation in promotions in 2012. The question is, if the BJP does not consider this decision proper, why did it not overturn the decision? If the decision by the Congress was against SC/ST employees, what stopped the BJP from changing this decision?

The fact is that the same Vijay Bahuguna who took this decision in 2012 as the then Congress Chief Minister is now in the BJP and most of his Ministers are currently Ministers in the present BJP government in Uttarakhand. The question also applies to Harish Rawat, the Congress leader who became Chief Minister after Bahuguna: if he thought this decision was wrong, why did he not change it? Chief Minister Trivendra Rawat and the BJP cannot escape by saying it was a decision taken by the Congress government. Arguing for the Uttarakhand government in this case in the Supreme Court, advocates PS Narasimha and Mukul Rohtagi asserted that the State government has decided not to give reservation. This is double-speak and shows a two-faced character: to say in the Court that the government does not want to give reservation; and to say in public that the decision not to give reservation is not the decision of our government but the decision of the previous government!

The governments are not just ending reservations; they are actually ending government jobs. Government jobs will be available to the General Category as well as to the Reserved Category only as long as government jobs exist. About 56,000 posts are lying vacant in Uttarakhand. If there is a need to fight for something, it is the need to fight for appointments to these vacant posts as per eligibility and through a transparent process; otherwise, the government will gradually declare these posts ‘dead’ and the attention of the people will be diverted into feeling a false sense of caste superiority and fighting acrimoniously against reservation.

Recent SC order on reservations in promotions exposes the anti-reservation face of the government and the BJP. It is highly condemnable that the Uttarakhand BJP government submitted to the SC that Uttarakhand gov. is not in favour of giving reservations in promotions. The SC's calling reservations not a fundamental right will in turn weaken the very fundamental premise of social justice and equality as envisioned in the Constitution.

We stand for reservation in promotions at all levels and demands from the Modi government to pass a legislation in current session of Parliament to ensure the same.