Sub-Classification Within The SC & ST Categories Should Not Eventually Lead To De-Reservation

The court, while permitting sub-classification, was moved by two ground realities:

1. SCs and STs are not a uniform class: The inclusion of castes, groups, communities or tribes in the list of SCs and STs, specified in Article 341 and 342 respectively, does not automatically lead to the formation of a uniform and internally homogenous class which cannot be further classified. Article 341 and 342 creates a legal fiction for the limited purpose of identification of SCs and STs by distinguishing them from other groups. The inclusion of a caste in the list of SCs and STs cannot be stretched to draw inferences about the existence or non-existence of internal differences among them.
2. Underrepresentation of certain castes: The absence of sub-classification has ensured that only a few dominant castes in the reserved categories avail the benefit of reservation. The rest of the castes from these categories continue to be underrepresented or worse, not represented at all. Justice Gavai, in his concurring opinion, while noting this fact observes, “If the State…finds that certain categories within the Scheduled Castes and Scheduled Tribes are not adequately represented and only the people belonging to few of the categories are enjoying the entire benefit reserved for Scheduled Castes and Scheduled Tribes, can the State be denied its right to give more preferential treatment for such categories?”

Sub-classification for the purposes of reservation, therefore, seemed to be an obvious solution to the problem of under-representation of certain castes or tribes within the reserved categories, who have not benefited from the policy of reservations. By acknowledging the internal socio-economic inequalities within these groups and allowing preferential treatment for those at the lowest socio-economic levels, the court assumes that their participation in public employment will naturally increase. It is this assumption in the judgment that requires further examination.

Reservation under the Indian Constitution

The Indian Constitution guarantees reservation in public employment to SCs, STs and OBCs under Article 15(4) and 16(4). Reservation in promotions with consequential seniority is guaranteed under Article 16(4A). If reserved seats don't get filled in a particular year, they can be carried forward as a separate class to the subsequent year under Article 16(4B).

There are only two broad limitations on the state's power to granting reservations.

• 50% Ceiling: No more than 50% of the total vacancies can be reserved, a rule introduced in Indra Sawhney. This rule does not apply to the carried forward seats.
• Efficiency of Administration: Under Article 335 of the Constitution, the State must maintain 'efficiency of administration' while granting reservation. However, the proviso to Article 335 allows for relaxation of qualifying marks or lowering of evaluation standards for reserved seats without compromising efficiency.

As is clearly evident from the above provisions, the Indian Constitution adopted a very liberal and forward looking approach to granting reservations. However, a closer look at some recent numbers reveals shocking facts that must lead us to question its relevance and, as a result, the dangerous consequences of the Davinder Singh judgment.

Shocking Numbers

In July 2022, the Central Government informed the Parliament that as of January 1, 2021, close to 58% of the reserved seats in its offices had backlog vacancies. The Education Minister in July this year informed the Parliament that close to 7000 posts for OBCs, SCs and STs in Central Universities are lying vacant. A 2023 report by the Parliamentary Committee on the Welfare of Scheduled Castes and Scheduled Tribes provides an in-depth account of the backlog vacancies in reserved categories. The situation is worse in the States. Only one example would suffice. As of July 2021, 30,000 reserved posts for SCs were vacant in various government departments in Tamil Nadu alone for nearly a decade. These figures indicate that a significant portion of the seats allocated for SCs, STs, and OBCs across the country have remained vacant for years, leading to a backlog of vacancies.

The “Not Found Suitable” Phenomenon

A major reason for these backlog vacancies is the denial of appointments to reserved category candidates on the ground that they are "not found suitable" to maintain "efficiency of administration" as per the mandate of Article 335. Consequently, these seats remain vacant, get carried forward, and accumulate over the years.

The Nagaraj Solution

In M. Nagaraj vs. Union of India(2006) 8 SCC 212, a 5 judge constitution bench of the Supreme Court had advocated for introduction of a time limit for carried forward vacancies. The court said, “100…In working out the carry-forward rule, two factors are required to be kept in mind, namely, unfilled vacancies and the time factor. This position needs to be explained. On one hand of the spectrum, we have unfilled vacancies; on the other hand, we have a time spread over a number of years over which unfilled vacancies are sought to be carried over. These two are alternating factors and, therefore…time-scale has to be imposed in the interest of efficiency in administration as mandated by Article 335. If the time-scale is not kept then posts will continue to remain vacant for years, which would be detrimental to the administration. Therefore, in each case, the appropriate Government will now have to introduce the time-cap depending upon the fact situation. What is stated hereinabove is borne out by the service rules in some of the States where the carry-over rule does not extend beyond three years.”

The court in Nagaraj saw Article 335 as a limitation on the powers enumerated in 16(4) and therefore suggested de-reservation as the only way out of the problem of prolonged backlog vacancies. It did not, however, deal with the reason behind backlog vacancies and the consequences of de-reservation. The fact that de-reservation would lead to a practical erosion of the reservation system in India and would inevitably render the provisions of the Constitution infructuous wasn't considered by the court.

Be that as it may, the observations in Nagaraj has led to increased demands for de-reserving seats that have remained unfilled for years by general category candidates. Constitutional courts today are flooded with cases seeking dereservation of seats that have not been filled for over three recruitment years. Although the courts have refrained from issuing mandamus in such petitions, they have allowed for administrative discretion to be exercised. [(1997) 6 SCC 283, (2018) 11 SCC 352, (1994) Supp (2) SCC 490, (2005) 2 SCC 396] Notifications/circulars dereserving seats that were unfilled even after being carried forward for 3 years have been upheld by the Supreme Court. (1996) 4 SCC 119

Policies on Dereservation

Despite the fact that there continues to be a general ban on dereservation, DoPT already has an exhaustive dereservation policy for 'Group A' posts to be implemented in 'public interest' when a reserved category vacancy doesn't get filled up. Even for other posts, rules for dereservation have been put in place for 'rare and exceptional circumstances'. In January this year, the University Grants Commission (UGC) rolled out a fresh dereservation policy stating that a vacancy reserved for SC, ST or OBC candidates can be declared unreserved if enough candidates from these categories are not available.

Although the policy had to be rolled back after widespread criticism and protests by the student community, the genuine fear is that the growing backlog of vacancies might prompt Parliament to enact a law on de-reservation with the justification that government offices/departments cannot keep functioning with half their capacity for decades. Alternatively, it might as well give rise to lateral entry recruitments without any seats reserved for SCs, STs and OBCs as was seen in the recent advertisement issued by the UPSC.

Sub-classification will lead to 'Dereservation'

It is in this context that Davinder Singh has to be read. Will the court's judgment lead to an increased representation of the most underprivileged and marginalised communities within the reserved categories who have hitherto been disregarded? The answer, in most likelihood, is an emphatic No! If reserved seats have remained unfilled for years because the system does not find 'suitable' candidates from amongst them, how is it possible that the most marginalised and the underprivileged within these reserved categories will be found suitable. This is even more true because the standards of evaluation of candidates for these posts remain the same. In a situation where the standards of evaluation see no change, the most underprivileged within the reserved categories will increasingly not be found suitable. Davinder Singh, therefore, will lead to an increase in backlog vacancies, vacant posts in the reserved categories and an increasing need/demand to enact a law on 'dereservation'. What will this do to the promise that the founders and the Constitution made to the SCs, STs and OBCs?

Justice Chandrachud offers a Solution

The majority opinion of Justice Chandrachud in 'Davinder Singh' may have some answer to this problem. While interpreting the phrase 'efficiency of administration' in Article 335, he observes:

“The preliminary error is that the requirement of efficiency of administration was viewed as an additional requirement and a roadblock to reservation provisions. Efficiency was not understood as a facet of the principle of equal opportunity…Though the Constitution does not define the phrase, the proviso to the Article offers interpretative guidance. The proviso states that “relaxation in qualifying marks in any examination or lowering the standards of evaluation” does not amount to a reduction in the efficiency of administration. There can be two possible deductions about the scope of the provision, based on a reading of the proviso. One possible meaning that can be deduced is that marks in the qualifying examination are not a marker of efficiency of administration because if they were, then a reduction of the qualifying standards/marks would also lead to a reduction in efficiency. Another possible interpretation could be that the premise of the proviso is that while reduction or dilution of the evaluating standards or the qualifying marks is not inconsistent with maintenance of efficiency, a complete removal of the qualifying marks would be. Even if the latter interpretation is accepted, it only goes to establish that securing higher marks in an examination does not contribute to higher efficiency and that securing a minimum mark (and not the highest) in the examination is sufficient to maintain efficiency of administration. Thus, a policy which allows for lower qualifying marks or standards of evaluation is by the proviso to Article 335 not contrary to efficiency.”

While hinting that the current method of evaluation may require a change if the benefit of reservation has to really be extended to those it is meant for, Justice Chandrachud says, “The Constitution does not prescribe the exact method of assessment which must be adopted for the examination. The Constitution also does not prescribe that the examination must be framed in a manner which would only assess skill sets accessible to certain classes of people. The principle of equality in opportunity in Article 16(1) is therefore the guide for the State while it is determining the method of examination. The examination or any method of distribution of posts must ensure factual equality. An examination leads to a priori exclusion if it only assesses the skill set that is accessible to specific classes. It is to offset this disadvantage that affirmative action policies are introduced for the distribution of posts…”

Chief Justice Chandrachud's majority opinion in Davinder Singh interprets Article 335 as a restatement of the necessity of considering the claims of the Scheduled Castes and the Scheduled Tribes in public services and not as a limitation to the exercise of the power of granting reservations. This, as we have seen above, is contrary to the observations in Nagaraj as well as Indra Sawhney which interpreted Article 335 as a limitation on the exercise of powers enumerated in Article 16(4).

Chief Justice Chandrachud's suggestion that efficiency of administration must not be viewed in terms of the narrow lense of marks scored in an examination, which a priori excludes certain classes, but in terms of inclusivity and equality as required by Article 16(1), does offer some hope for a future change in assessment criterias.

While referring to its earlier judgments in BKPavitra v. State of Karnataka (2019) 16 SCC 129 and Neil Aurelio Nunes v. Union of India (2022) 4 SCC 1 the top Court specifically said that granting reservations cannot be viewed as a conflict between the principles of merit and distributive justice. It said, “this Court highlighted the folly of measuring “merit” based on the performance of candidates in a seemingly “neutral” selection process which is factually not neutral since the process does not provide equal opportunity to candidates belonging to classes which face widespread inequalities in accessing facilities required to ace the examinations.”

The Chinnaiah Solution

In Chinnaiah, however, the top court had imagined a different solution. Justice Hegde, while writing for the majority, said, “If benefits of reservation are not percolating to them equitably, measures should be taken to see that they are given such adequate or additional training so as to enable them to compete with the others.”

Justice Sinha, in his concurring opinion said, “The chart produced before us clearly shows that the members belonging to Relli and Adi-Andhra are hardly educated. What was necessary in the situation was to provide to them scholarships, hostel facilities, special coaching, etc., so that they may be brought on the same platform with the members of other Scheduled Tribes viz. Madiga and Mala, if not with the other backward classes.”

As one can see, in Chinnaiah, the court urged the State to provide more training, education, and resources to those who haven't benefited from reservations. In Nagaraj, the proposed solution was de-reservation. In Davinder Singh Justice Chandrachud suggested a novel approach of assessing candidates from reserved categories based on diverse skill sets, rather than focussing solely on marks. However, he did not address the inevitable outcome of sub-classification, which is the increasing backlog of vacancies. Additionally, none of the parties raised this issue before the court. As a result, the specter of de-reservation looms over the constitutional commitment to affirmative action.