Substantive equality

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Substantive equality

The Supreme Court decision rightly rejects the notion that quotas affect efficiency

Source: https://www.thehindu.com/opinion/editorial/substantive-equality/article27109865.ece

Why in news?

  • The Supreme Court, in a landmark ruling, upheld the constitutional validity of a 2018 Karnataka law granting consequential seniority to government servants promoted on the basis of reservation.
  • The Supreme Court underlined that quota for Scheduled Castes and Scheduled Tribes is “not at odds with the principle of meritocracy” and is “true fulfilment of effective and substantive equality by accounting for the structural conditions into which people are born”.

The case

  • The Supreme Court bench, while upholding the validity of the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act, 2018, said it “has cured the deficiency” on account of which a 2002 law on reservation in promotions had been quashed in 2017.
    • The 2018 law protects consequential seniority from April 24, 1978. The Karnataka legislature enacted the 2018 law after the Supreme Court invalidated the 2002 Act in B K Pavitra vs Union of India.
    • Striking down the 2002 law in 2017, the Supreme Court had said that Sections 3 and 4 of the Act were ultra vires of Articles 14 and 16 of the Constitution on the ground that the exercise mandated in the Nagaraj judgment had not been carried out.
  • The “deficiency” referred to was the lack of an exercise to determine and collect quantifiable data on inadequacy of representation, backwardness and the impact on overall efficiency before the law was enacted, as mandated by the Supreme Court’s 2006 judgment in M Nagaraj vs Union of India.

SC judgment

  • In its order, the court, referring to the 1995 judgment of a Constitution Bench in R K Sabharwal vs State of Punjab, said consequently, it is open to the State to make reservation in promotion for SCs and STs proportionate to their representation in the general population.
  • Further, the court said, the providing of reservation for SCs and STs is not at odds with the principle of meritocracy.
    • 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

Constitutional provisions

  • Article 335: Article 335 recognises that special measures need to be adopted for considering the claims of SCs and STs in order to bring them to a level-playing field.
    • Centuries of discrimination and prejudice suffered by the SCs and STs in a feudal, caste-oriented societal structure poses real barriers of access to opportunity.
    • The proviso contains a realistic recognition that unless special measures are adopted for the SCs and STs, the mandate of the Constitution for the consideration of their claim to appointment will remain illusory.
  • The proviso, in other words, is an aid of fostering the real and substantive right to equality to the SCs and STs. It protects the authority of the Union and the States to adopt any of these special measures, to effectuate a realistic (as opposed to a formal) consideration of their claims to appointment in services and posts under the Union and the states.
  • The proviso is not a qualification to the substantive part of Article 335 but it embodies a substantive effort to realise substantive equality.
  • The proviso also emphasises that the need to maintain the efficiency of administration cannot be construed as a fetter on adopting these special measures designed to uplift and protect the welfare of the SCs and STs.

Significance

  • This Supreme Court order is significant because it underlines “a ‘meritorious’ candidate is not merely one who is ‘talented ‘or ‘successful’ but also one whose appointment fulfils the constitutional goals of uplifting members of the SCs and STs and ensuring a diverse and representative administration”.
  • Quantifiable data being used to justify reservation: The Supreme Court is notable for being the first instance of quantifiable data being used to justify reservation.
    • After a similar 2002 law was struck down on the ground that there was no data, as required by the judgment in Nagaraj (2006), the Karnataka government appointed a committee to collect data on the “backwardness” of SC/ST communities, the inadequacy of their representation in the services and the overall impact of reservation on the efficiency of the administration — parameters laid down in the 2006 verdict as constitutional limitations on the power to extend reservation in employment.
    • Based on the report, the State enacted a fresh law, which has now been upheld on the ground that it is compliant with the Nagaraj formulation, as well as the clarification found in Jarnail Singh (2018).
  • A key principle in this decision is that where reservation for SC/ST candidates is concerned, there is no need to demonstrate the ‘backwardness’ of the community.
  • The other pre-requisites of a valid system — quantifiable data on the ‘inadequacy of representation’ for classes of people identified for reservation, and an assessment of the impact of such quota on the “efficiency of administration” — remain valid.
    • Justice D.Y. Chandrachud’s judgment applies the rule emerging from Jarnail Singh, which decided that Nagaraj did not require reconsideration.
    • At the same time, it held that Nagaraj was not right in insisting on data to justify the ‘backwardness’ of SC/ST communities, as it contradicted a nine-judge Bench decision in Indra Sawhney (1992).

Conclusion

  • The judgment places in perspective the historical and social justification for according reservation, rejecting the argument that quotas, by themselves, affect administrative “efficiency”.
    • It says merit lies not only in performance but also in achieving goals such as promotion of equality, and that India’s transformative Constitution envisages not just a formal equality of opportunity but the achievement of substantive equality.
    • It accepts the subjective satisfaction of the government in deciding the adequacy of representation, subject to the norm that there should be relevant material before it.
  • One must also recognise the constant tension between legislative intent and judicial interpretation.
    • Most judgments on affirmative action indicate that the courts are laying down constitutional limitations, lest the equality norm, a basic feature of the Constitution, be given the go-by.
    • It is welcome that the backwardness of the SCs and STs no more needs to be demonstrated.
    • Policy-makers should heed the appeal contained in the judgment: there is no antithesis between the concept of efficiency and the inclusion of diverse sections of society in the administration.
  • While data on representation may be a requirement, the idea that reservation has an adverse effect on administration must be rejected.

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