Reservation In Promotions : Should Adequacy Of Representation Be Proportionate To Population?Supreme Court Discusses [Hearing Day 3]

The Supreme Court on Wednesday continued hearing the petitions relating to reservation in promotions. Centre and States had filed numerous petitions urging the Supreme Court to settle the confusion regarding the norms for reservation in promotions saying that several appointments have been stalled due to ambiguities. A Bench of Justices L Nageswara Rao, Sanjiv Khanna and B.R.Gavai is hearing the matter after a 5-judge bench answered the reference in 2018 in the case Jarnail Singh v. Lachhmi Narain Gupta. On Tuesday and Wednesday, the Bench had heard AGI K.K.Venugopal, ASG Balbir Singh, SA Paramjit Patwalia, SA Rajeev Dhawan, SA Indira Jaisingh and SA Gopal Sankaranarayanan. On Thursday, the Bench continued hearing SA Gopal Sankaranarayanan, SA Rana Mukherjee and SA Dinesh Dwivedi. Highlights of the hearingThe main points raised during today's hearing were whether adequacy of reservation should be proportionate to population of the backward classes and whether the reservation should apply cadre-wise.The bench opined that the "proportionate to population" argument was already rejected by the 5-judge bench and said that it was not going to re-examine it."When 5-judges have declined the invitation, should we then go into that consideration?"", the bench remarked. The bench noted that the 5-judge bench in Jarnail Singh has left it to the States to determine adequate representation depending upon the promotional post that is in questionHere is a full account of today's hearing : Senior Advocate Gopal Sankaranarayanan Senior Advocate Sankaranarayanan on Thursday began his arguments by pointing out that adequacy of representation and efficiency of administration were the "anchoring conditions" on which the constitutionality of the 85th Amendment Act hinged. Further, he had argued that the State must first satisfy whether there is inadequate representation of SC/STs in public employment before introducing reservation in promotions. If the answer to that was in affirmative, he argued, then the State must undertake three exercises- first, decide on extent of reservation, second, identify which posts/classes have inadequacy and third, assess whether efficiency in administration would be affected by introducing reservation in promotion. Continuing with his submissions, on Wednesday, he argued that there must be an end point to reservation which must be indicated. On the question of adequacy vs proportionate, relying on Indra Sawhney, he submitted that adequacy should not be read as proportionate. "I understood the Learned AGs argument to be that that (Indra Sawhney) was in the context of OBC. I would beg to respectfully differ because Para 807 is dealing with Art.16 (4) which talks about Backward Classes of citizens which includes within it SCs, STs and OBCs": he submitted. He argued that the principle of adequacy laid down in Indra Sawhney would apply equally to SCs and STs so adequacy has to be less than proportionate. Justice Rao pointed out that the "proportionate to the population" argument was raised by AG in Jarnail Singh and rejected there. Continuing his arguments, he tried to contrast the reservation provided to Anglo-Indians under Art.331, right to representation in legislatures under Art.334 with Art.15 and Art.16 of the Constitution. Emphasising that post made to Art.334 post the 104th Amendment, reservation for Anglo-Indians has come to an end but SC/ST representation continues for another 8 years, he submitted: "There is no timeline with reference to Art.16 and Art.15 and there is a very clear answer why that is so. Because the only right with respect to SC/STs is in representation politically in parliament and legislature." He argued that the reason by Art.334 provides a timeline and Art.15 and Art.16 do not is because Art.15 and Art.16 do not provide a right. "If the state exercises the enabling power only then does the right arise. That is why the text does not provide a timeline….I will argue that a timeline has to be implicitly read with respect to reservations also." Second, referring to the 50% limit laid down in Indra Sawhney, he submitted that it is important to note that 50% is less than proportionate. "SCs. STs and OBCs would be more than 50% clearly. One aspect is that it imbalances the equity in the equality code the other aspect is that in sheer numbers it would be less than proportionate. And that aspect has not been considered in Jarnail Singh": he submitted. Justice Rao intervened to ask how Sankarnarayanan would deal with the law laid down in Sabharwal that the State may take the total population of a particular Backward Class into consideration while reaching a conclusion that a class is not adequately represented. [ Justice Rao was referring to Paragraph 4 of S.K.Sabharwal which reads as follows: "It is, therefore, incumbent on the State...

Reservation In Promotions : Should Adequacy Of Representation Be Proportionate To Population?Supreme Court Discusses [Hearing Day 3]

Sneha Rao

Tags