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By Kanu Agrawal
“Facts are stubborn things, but statistics are pliable.”
― Mark Twain
After the verdict in Jarnail, it became clear that any enactment which failed to carve out the qualitative exception before extending reservation in promotions with consequential seniority, would fall foul of Article 14 and Article 16.
In the BK Pavitra I case, the Supreme Court had already declared the Karnataka 2002 Act [the Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of the Reservation (to the Posts in the Civil Services of the State) Act] providing for consequential seniority along with reservation in promotions as unconstitutional on the ground of absence of any quantifiable data which is mandatory as per the M Nagaraj case.
Post BK Pavitra I, the Karnataka government ‘revived’ the exact same provisions on the basis of the Ratna Prabha Committee Report. The said report, like most statistical exercises, was geared towards painting a pre-determined picture by brushing away inconvenient facts. The revival of provisions already declared unconstitutional in BK Pavitra I, was challenged in the BK Pavitra II case.
The questions in BK Pavitra II were clear:
The Court, in answering these questions, abdicated its basic constitutional obligation of substantive judicial review and betrayed the trust reposed in it by M Nagaraj and Jarnail.
Complete abdication of Constitutional obligation
In reviewing the Ratna Prabha Committee Report, the Court failed to analyse the data, test it as per the requirements set in the precedents, and to apply its own doctrine of substantive judicial review. This resulted in validating the revived provisions without the requisite constitutional basis.
In order to evade its Constitutional obligation, BK Pavitra II relies on Indra Sawhney and the Barium Chemicals case, to hold that the opinion of the government on the ‘inadequacy of representation’ of the SCs and STs in the public services is a matter which forms a part of the ‘subjective satisfaction’ of the State. On this basis, the Court held that the only question that could be analysed would be whether the report considered material which was irrelevant or extraneous or had drawn a conclusion which no reasonable body of persons could have adopted.
While the said proposition has some basis in classic administrative law making, the same would not be applicable in the sphere of reservation in promotions wherein the requirement of the robust data was read in.
It may be noted that the sanctity of the data and its heightened standard is clear from constant reference to a ‘compelling need’ highlighted in M Nagaraj. The requirement of data as a precondition to exercise the enabling power, was meant to curtail excessiveness and to make sure that the exercise of such power is as per the de-facto situation. The data being cadre specific, marked the measure of its qualitativeness and specificity.
The Court in BK Pavitra II failed to judicially review the data against the binding precedent in M Nagaraj and Jarnail which held that that “quantifiable data shall be collected by the State, on the parameters as stipulated in Nagaraj (supra) on the inadequacy of representation, which can be tested by the Courts”.
This abdication of judicial responsibility if analysed in juxtaposition of the data presented before the Court, paints a disconcerting picture. First, the data collected by the state government was limited and sampled. The sampling enabled the state to deliberately not collect data from all government departments, and specifically ignore the departments where there was a high reserved category representation. The Court, by allowing the sampling of data rather than a complete analysis, allowed the state to cherry-pick the data and gloss over other purportedly inconvenient parts.
Second, the data was collected on the hypothetical standard of ‘vacancies’ as per ‘total sanctioned posts’ and not on the basis of the de facto position. The data was collected on the basis of grades [A, B, C and D] and not on the basis of cadre in various promotional posts, in contravention of M Nagaraj and the UPPCL case. This judging of ‘inadequacy in representation’ on the basis of vacancies from total sanctioned posts rather than cadre resulted in a grave anomaly.
It must be noted that vacancies calculated from ‘total sanctioned posts’ would never depict the genuine situation in the service, as total sanctioned posts are rarely ever filled up in government departments, which have large backlogs for both, unreserved and reserved category.
To illustrate, suppose there are 100 sanctioned posts in a department, out of which 30 are occupied by unreserved candidates, 15 are occupied by reserved candidates and 55 remain ‘vacant’. The reservation is 30%, which implies that 30 posts must be manned by reserved category employees.
From the sanctioned posts standpoint, there would be an ‘inadequacy’ of 15 vacancies for reserved category. Whereas when the same is compared to the de facto situation, it would be clear that the reserved category representation is more than adequate, with 15 out of the 45 posts [1/3rd posts] being actually occupied by reserved category candidates. Through the failure to see through the said methodology, the Court, in effect, validated a dishonest data collection exercise.
Third, BK Pavitra II defines standard of ‘adequacy’ on the basis of the proportion of reserved category persons to the total population of the state. Even if one studies the etymology of the words adequate/adequacy on one hand and proportion/proportional on the other, it would be clear that under no circumstance can ‘adequacy’ be ever equated with ‘proportionality’ in population. The standard for “adequacy” is to be adjudged at a level lower to the proportion of the population by comparing the actual representation with the ‘adequate representation’.
The Constitution mandates adequacy of representation and not a pro-rata distribution of State services amongst caste groups. In equating ‘adequacy’ with ‘proportion of population’, BK Pavitra II ignored perhaps six decades of precedents from the Rangachari case to the Jarnail case. Further, the Court failed to indicate any marker as to the requirement of compelling nature of inadequacy, and merely based it on a ‘subjective satisfaction’ of vague notions.
The Court in BK Pavitra II, by ignoring the mandate of substantive judicial review, has given the States boundless leeway to fabricate convenient data. The methodology adopted results in deceitfully masking the factual position, resulting in manifest injustice and perpetuating inequality.
Apart from the above mentioned abdication of Constitutional obligation, the Court in BK Pavitra II has made certain elementary doctrinal errors. First, the Court renders the judgment on the presupposition of treating reservation in promotions as a fundamental right. The judgment notes that it is,
“… considering the validity of a law which was enacted by the State legislature for enforcing the substantive right to equality for the SCs and STs”.
This perhaps is the genesis of the error.
Reservations, cannot, in any manner whatsoever, be regarded as a substantive right to equality. There may indeed be certain theoretical discussions in precedents wherein reservations were read to be part of the warped definition of equality, but the affirmative action provisions have consistently been held as ‘enabling provisions’ which permit the State to exercise the power as and when required. Affirmative action cannot be claimed as a matter of right or mandamus and is actually dependent upon the discretion of the State, which is subject to rigorous judicial review.
Second, BK Pavitra II confuses the concept of efficiency with diversity of representation and inclusiveness. In a first, the otherwise insulated concept of ‘efficiency’ fell prey to the liberal enthusiasm of reading in expansive concepts of diversity and inclusiveness in all forms. This reinterpretation has little theoretical or legal basis as diversity and equal representation cannot be conflated with ‘efficiency’.
It may be noted that the benchmark for adjudging persons across sectors, can be of qualitative or quantitative nature or a mix of both. In fact, the overdependence on ‘qualitative benchmarks’ in judging merit in society, as sought to be propounded in BK Pavitra II, often leads to perpetuation of class/caste and hinders social mobility.
It can be argued that it was the overdependence on qualitative benchmarks that perpetuated the caste system and still perpetuates nepotism in the judicial system. The subjectivity and discretion enables intangible and unquantifiable factors which perpetuate nepotism/discrimination in various forms. It is the modernization of systems that has helped us move from a majorly qualitative to majorly quantitative mechanism of adjudging merit, which has been a catalyst for social mobility across fields. Therefore, efficiency and quantitatively definable merit go hand in hand, and any detachment in the name of inclusiveness of “substantive equality” is actually a step backward.
Third, BK Pavitra II grafts a highly contentious and obscure idea of ‘merit’ on to the Constitution and its equality code. The Court, relying heavily on the Amartya Sen’s post-modern rambling about a utopian society, states that:
“merit must not be limited to narrow and inflexible criteria such as one‘s rank in a standardised exam, but rather must flow from the actions a society seeks to reward, including the promotion of equality in society and diversity in public administration.”
Through this, the judgment seeks to re-define merit and efficiency, superimposing abstract social science principles grounded in staunch post-modernist/communist philosophy.
Admittedly there is nothing wrong in citing Prof. Amartya Sen’s ideas on “merit”, howsoever detached from reality they may be, but it is only fair for the Supreme Court to stay ideologically neutral in such matters. The Court cannot rely solely on a scholar on one side of a stark ideological divide and completely ignore the views on the other side. The judgments coloured by such staunch ideological bias often result in bad precedents.
Lastly, on the issue of ‘creamy layer’, BK Pavitra II seeks to overreach the Constitution Bench judgment in Jarnail, without any basis or analysis whatsoever. In Jarnail, the Constitution Bench had unanimously opined that the failure to exclude the ‘creamy layer’ from the benefit of reservation in promotions with consequential seniority would render such enactment as bad in law.
In BK Pavitra II, most surprisingly, despite the opinion in Jarnail being fresh in the minds of everyone, the Court held that “the concept of creamy layer has no relevance to the grant of consequential seniority”.
It may be noted that ‘consequential seniority’ has no meaning without the context of reservation in promotions and the qualitative exclusion is a necessary requirement for any reservation in promotion enactment to be Article 14 and Article 16 compliant. The blatant overreach of the ratio of Jarnail by stating that BK Pavitra II is limited to consequential seniority is nothing but insincere.
In essence, BK Pavitra II marks an astonishing departure from the precedent on the subject and seems to be written in complete forgetfulness of Article 14, Article 15 and Article 16(1), along with an atypical affinity to the exceptionality of Article 16(4)/(4A)/(4B).
A ‘judgment’ is defined as the act or process of forming an opinion or making a decision after careful thought. A judgment cannot be a pre-determined conclusion which is sought to be justified thereafter by a meandering simulated analysis.
About the author: Kanu Agrawal is an advocate at the Supreme Court of India.
The views expressed above are of the author and do not necessarily reflect the views of Bar & Bench.