Reservation in Public Employment

Why in the News?

Jarnail Singh judgment authored by Justice Rohinton Nariman indicates a critical turn in the jurisprudence of reservation in public employment.

Supreme Court time and again reiterated that there is no fundamental right to reservation or promotion under Article 16(4) or Article 16(4 A) of the Constitution
They are enabling provisions for providing reservations

Article 16: It provides for equality of opportunity for all citizens in matters of employment or appointment to any office under the State
- No citizen can be discriminated against or be ineligible for any employment or office under the State on grounds of only religion, race, caste, sex, descent, place of birth or residence
- Exceptions:

There are three exceptions to this general rule of equality of opportunity in public employment:
- Parliament can prescribe residence as a condition for certain employment or appointment in a state or union territory or local authority or other authority
- As the Public Employment (Requirement as to Residence) Act of 1957 expired in 1974, there is no such provision for any state except Andhra Pradesh and Telangana
- The State can provide for reservation of appointments or posts in favour of any backward class that is not adequately represented in the state services
- A law can provide that the incumbent of an office related to a religious or denominational institution or a member of its governing body should belong to the particular religion or denomination

Article 16 (4A): Provides that the State can make any provision for reservation in matters of promotion in favour of the Scheduled Castes and the Scheduled Tribes if they are not adequately represented in the services under the State.
- It was inserted by the 77th Constitutional Amendment Act, 1995

Article 335: It recognises that special measures need to be adopted for considering the claims of SCs and STs to services and posts, in order to bring them to par.

Reservation in employment which was otherwise confined to Scheduled Castes and Scheduled Tribes got extended to Other Backward Classes as well on the basis of the recommendations of the Second Backward Class Commission as constituted, headed by B.P. Mandal
The recommendation of the Mandal Commission (1980) to provide 27% reservation to Other Backward Classes in central services and public sector undertakings, over and above the existing 22.5% reservation for Scheduled Castes and Scheduled Tribes, was sought to be implemented by the Government of India in 1990

The case was decided by the Nine Judge Constitution Bench. The bone of contention in this landmark judgment was the Mandal Commission Report of 1980
The court upheld the constitutionality of the 27% reservation but put a ceiling of 50% unless exceptional circumstances warranting the breach, so that the constitutionally guaranteed right to equality under Article 14 would remain secure
The advanced sections among the OBCs (the creamy layer) should be excluded from the list of beneficiaries of reservation
The Supreme Court had held that Article 16(4) of the Constitution of India does not authorise reservation in the matter of promotions

It inserted Article 16(4-A), to provide that “nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State”

A five-judge bench of the Supreme Court upheld the constitutional validity of 77th Amendment and said these were mere enabling provisions. The court laid down certain conditions:
- Quantifiable data showing backwardness of the class and
- Inadequacy of representation of that class in public employment
The bench held that the creamy layer among Scheduled castes and tribes is to be excluded from the reservation

The controversy in this case arose due to the interpretation of Article 16 (4A) which was added by the Constitution 77th Amendment
The constitution bench invalidated the requirement to collect quantifiable data in relation to Scheduled Castes and Scheduled Tribes but upheld the principle of applicability of creamy lawyer in relation to Scheduled Castes and Scheduled Tribes
Jarnail Singh judgment authored by Justice Rohinton Nariman indicates a critical turn in the jurisprudence of reservation

It introduced a 10% reservation for Economically Weaker Sections (EWS) of society by amending Article 15 and Article 16 of the Constitution
It provided for admission to Central Government-run educational institutions and private educational institutions (except for minority educational institutions), and for employment in Central Government jobs

The Mandal Commission was set up to investigate the extent of educational and social backwardness among various sections of Indian society and recommend ways of identifying these ‘backward classes’
The Commission gave its recommendations in 1980 and advised that ‘backward classes’ should be understood to mean ‘backward castes’
The Commission did a survey and found that these backward castes had a very low presence in both educational institutions and in employment in public services
It, therefore, recommended reserving 27 per cent of seats in educational institutions and government jobs for these groups
In August 1990, the government decided to implement one of the recommendations of Mandal Commission pertaining to reservations for OBCs in jobs in the central government and its undertakings
This decision sparked agitations and violent protests in many cities of north India
The decision was also challenged in the Supreme Court and came to be known as the ‘Indira Sawhney case’, after the name of one of the petitioners
In November 1992, the Supreme Court gave a ruling upholding the decision of the government