Reservation in Promotion

And the ceiling of fifty per cent, the creamy layer and the sub-classification limits continue to apply. The validity of individual State enactments was left to be tested case by case.

Jarnail Singh: one condition removed

Jarnail Singh v. Lachhmi Narain Gupta, decided 26 September 2018, refused to refer Nagaraj to seven judges but held its requirement of quantifiable data showing the backwardness of the Scheduled Castes and Scheduled Tribes to be contrary to the nine judge Bench in Indra Sawhney, which treats them as the most backward once in the Presidential List under articles 341 and 342, and therefore invalid to that extent.

It declined to disturb Nagaraj on the creamy layer, and declined the Attorney General's invitation to make proportionality to population the test of adequacy of representation, noting the difference in language between article 330 and article 16(4A).

So the surviving requirements before a State may reserve in promotion are data on inadequacy of representation and on efficiency of administration, not on backwardness.

And Davinder Singh on article 335

State of Punjab v. Davinder Singh, decided 1 August 2024, adds a point that matters here: article 335 is not a limitation on the power under articles 16(1) and 16(4) but a restatement of the need to consider the claims of the Scheduled Castes and Scheduled Tribes. That reading softens the third Nagaraj condition, since efficiency is a consideration to be weighed rather than a bar.

The American comparison

There is no American doctrine of reservation in promotion, and the nearest analogue shows why. A public employer's race-conscious layoff or promotion plan is a racial classification receiving strict scrutiny, and the interest in remedying general societal discrimination has been rejected as too amorphous to be compelling; what may be remedied is the employer's own identified discrimination.

City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), is the authority for the standard: the standard of review under the equal protection clause is not dependent on the race of those burdened or benefited by a particular classification, so a benign racial classification by a State receives strict scrutiny.

The contrast is exact. Indian law asks whether the group is inadequately represented; American law asks whether this employer discriminated.

A worked example

A State wishes to reserve thirty per cent of promotions to a senior grade for the Scheduled Castes.

Power. Article 16(4A), inserted 1995.

Consequential seniority. Available since the Eighty Fifth Amendment, retrospectively from 1995.

Data required. Inadequacy of representation in the grade concerned, and the effect on efficiency under article 335; not backwardness, after Jarnail Singh.

Limits. The fifty per cent ceiling on the year's vacancies, subject to article 16(4B) for backlog; the creamy layer.

Cadre. The data must relate to the cadre or grade in issue, since inadequacy is not a proposition about the service as a whole.

The cases

Facts. M. Nagaraj v. Union of India, (2006) 8 SCC 212, challenged the Seventy Seventh, Eighty First, Eighty Second and Eighty Fifth Amendments as damaging the basic structure by undoing Indra Sawhney.

Held, by five judges. The amendments were valid as enabling provisions that do not by themselves alter the structure of equality; but before exercising the power under article 16(4A) the State must collect quantifiable data on backwardness, inadequacy of representation and consistency with efficiency of administration under article 335, and the ceiling, creamy layer and sub-classification limits continue to apply, individual enactments being open to challenge.

Why it matters here. It is the case that makes the promotion power conditional, and the conditions are what litigation since has been about.

Facts. Jarnail Singh v. Lachhmi Narain Gupta, decided 26 September 2018, was the Union's request to refer Nagaraj to seven judges on the backwardness data and creamy layer points.

Held, by five judges. No reference was necessary; the backwardness data requirement is contrary to Indra Sawhney and invalid to that extent; Nagaraj is undisturbed on the creamy layer; and proportionality to population is not the test of adequacy of representation.

Why it matters here. It states the law as it now stands on what a State must prove.

Facts. City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), concerned a city requirement that prime contractors subcontract at least thirty per cent of the value of city contracts to minority business enterprises.

Held, by the Supreme Court. The plan was struck down. The standard of review under the equal protection clause is not dependent on the race of those burdened or benefited by a particular classification, so strict scrutiny applied, and the plan was supported by no compelling interest and was not narrowly tailored.

Why it matters here. It is the American answer to a percentage set-aside by a public body, and it shows why no American equivalent of article 16(4A) could exist.

Distinctions

What beginners get wrong

"Article 16(4) allows reservation in promotion." Indra Sawhney held it does not; article 16(4A) supplies the power.

"Promotion reservation is available for the other backward classes." Article 16(4A) names only the Scheduled Castes and Scheduled Tribes.

"Nagaraj struck the amendments down." It upheld them and attached conditions.

"After Jarnail Singh no data is needed." Data on inadequacy of representation and on efficiency is still needed; only the backwardness requirement went.

Limits and criticism

Consequential seniority compounds, because a person promoted earlier by reservation carries that advantage into every later promotion, which is why the Eighty Fifth Amendment was the most contested of the four.

Efficiency is unmeasurable, and the article 335 condition therefore invites either a formality or an unprincipled refusal; Davinder Singh's reading of article 335 as a restatement rather than a limitation is the current answer.

Cadre-wise data is expensive and its absence is the usual ground on which State schemes fall.

And the pattern is the deepest criticism of all: a nine judge decision was answered by four amendments, which were upheld with conditions by five judges, one of whose conditions was then held contrary to the nine judge decision. The law is now stated across four cases and four amendments, which is not a design.

Quick revision

1. Indra Sawhney, AIR 1993 SC 477: article 16(4) does not permit reservation in promotion, prospectively.
2. Seventy Seventh Amendment 1995: article 16(4A), promotion, Scheduled Castes and Scheduled Tribes only, from 17 June 1995.
3. Eighty First Amendment 2000: article 16(4B), backlog outside the year's ceiling, from 9 June 2000.
4. Eighty Second Amendment 2000: proviso to article 335, relaxation of qualifying marks and standards.
5. Eighty Fifth Amendment 2001: consequential seniority, retrospectively from 17 June 1995.
6. Nagaraj, (2006) 8 SCC 212: valid but conditional; three data requirements; ceiling, creamy layer and sub-classification limits apply.
7. Jarnail Singh, 2018: backwardness data invalid; creamy layer undisturbed; proportionality to population rejected as the test of adequacy.

Test yourself

1. What did each of the four amendments do? The Seventy Seventh Amendment 1995 inserted article 16(4A), enabling reservation in matters of promotion for the Scheduled Castes and Scheduled Tribes not adequately represented, with effect from 17 June 1995. The Eighty First Amendment 2000 inserted article 16(4B), treating unfilled reserved vacancies of a year as a separate class outside the ceiling for the year of filling, with effect from 9 June 2000. The Eighty Second Amendment 2000 added the proviso to article 335 permitting relaxation of qualifying marks and lowering of standards of evaluation for promotion reservation. The Eighty Fifth Amendment 2001 substituted words in article 16(4A) to add consequential seniority, retrospectively from 17 June 1995.

2. What conditions did Nagaraj attach, and which survives? Before exercising the power under article 16(4A) the State must collect quantifiable data showing the backwardness of the class, the inadequacy of its representation in the service, and that the reservation is consistent with the maintenance of efficiency of administration under article 335; and the fifty per cent ceiling, the creamy layer and the sub-classification limits continue to apply. Jarnail Singh v. Lachhmi Narain Gupta, decided 26 September 2018, held the backwardness requirement contrary to Indra Sawhney and invalid to that extent, so what survives is data on inadequacy of representation and on efficiency of administration.

3. Why is consequential seniority the most contested of the four amendments? Because its effect compounds. A person promoted earlier than he otherwise would have been, by reason of reservation, also carries the seniority gained by that earlier promotion into every subsequent promotion, so a single reserved promotion produces an advantage at each later stage rather than once. That makes the departure from article 16(1) cumulative rather than discrete, which is why the Eighty Fifth Amendment was enacted separately and retrospectively and why it attracted the strongest basic structure challenge in Nagaraj.

4. Why can there be no American article 16(4A)? Because a race-conscious promotion or layoff scheme adopted by a public employer is a racial classification, and City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), holds that the standard of review under the equal protection clause does not depend on the race of those burdened or benefited, so strict scrutiny applies to a benign classification as much as to a hostile one. The interest in remedying general societal discrimination has been rejected as too amorphous to be compelling; what may be remedied is the employer's own identified discrimination. Indian law asks whether a group is inadequately represented, and American law asks whether this employer discriminated.