Efficiency of administration must be defined in inclusive sense: SC upholds Karnataka Act on reservation in promotions

The Supreme Court has upheld the constitutional 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.

The Act passed by the Karnataka State Legislature adopts the principle that consequential seniority is not an additional benefit but a consequence of the promotion which is granted to members of the Scheduled Castes and Scheduled Tribes.

Background

The judgment rendered by a Bench of Justices UU Lalit and DY Chandrachud was passed in a batch of petitions challenging the Act passed in 2018.

A similar Act was passed by the Karnataka government back in 2002, and the same was challenged before the Supreme Court in BK Pavitra v. Union of India. A two-judge Bench of Justices AK Goel and UU Lalit had in 2017 held the legislation to be ultra vires Articles 14 and 16 of the Constitution.

The basis for this decision was that the state government did not conduct an exercise for determining the need for such reservation. The Bench had relied on the Supreme Court’s decision in M Nagraj v. Union of India, which laid down that a study on the aspects of the inadequacy of representation, backwardness and the impact on overall efficiency needs to be conducted before providing for reservation.

After the decision in BK Pavitra, the state government constituted the Ratna Prabha Committee to conduct a study on the above-mentioned aspects. The Committee submitted its report on the same in May 2017.

The government then enacted the 2018 Act, after which petitions were filed assailing the validity of the same. In March this year, the Supreme Court stayed the operation of the Act.

Arguments

Before the Supreme Court, the petitioners contended that the state legislature has virtually re-enacted the 2002 Act without curing its defects. It was argued that the study conducted by the Ratna Prabha Committee had fallen short of the parameters laid down by M Nagaraj.

It was argued that the enactment of the 2018 Act amounted to usurping the judicial decision passed in BK Pavitra. It was further argued that unless the basis of legislation which is found to be ultra vires has been altered, the mere enactment of a new legislation would constitute a brazen overruling of the law.

The counsel for the petitioners went on to contend that the Ratna Prabha Committee report is flawed and does not establish the inadequacy of representation and impact on administrative efficiency.

A challenge was also made to the fact that the Governor of the state reserved the Reservation Act 2018 for the consideration of the President.

The retrospective effect of the 2018 legislation to operate from 1978 was also assailed by the petitioners.

On the other hand, the Karnataka government argued that the state legislature is competent to enact a law with retrospective or retroactive operation. It was further stated that the legislative competence of the state legislature to enact law is traceable to Article 16 (4A). Merely because the legislation confers seniority with effect from 1978, will not lead to its invalidation.

The Verdict

Reference of Bill to President

The Court observed that Article 200 of the Constitution enables the Governor to either assent to a Bill passed in the state legislature, withhold assent, or reserve it for the President’s consideration.

In this regard, it was held that a law cannot be struck down as unconstitutional for want of “proper assent”. The validity of the President’s assent is not justiciable, the Court held.

The 2018 Act and BK Pavitra

On the argument that the 2018 Act effectively overrules the Supreme Court’s decision in BK Pavitra, the Court held,

“A legislature cannot overrule a decision of the court on the ground that it is erroneous or is a nullity. But, it is certainly open to the legislature either to amend an existing law or to enact a law which removes the basis on which a declaration of invalidity was issued in the exercise of judicial review.

In the present case, the state legislature of Karnataka, by enacting the Reservation Act 2018, has not nullified the judicial decision in B K Pavitra I, but taken care to remedy the underlying cause which led to a declaration of invalidity in the first place. Such a law is valid because it removes the basis of the decision.”

Findings of the Ratna Prabha Committee

The infirmities in the 2002 Act were held to be cured by the study conducted by the Ratna Prabha Committee.

Before delving into this aspect, the Court noted the discretion vested in state governments to determine the adequacy of representation in promotional posts.

“…it is relevant for this Court to recognize the circumspection with which judicial power must be exercised on matters which pertain to propriety and sufficiency, in the context of scrutinizing the underlying collection of data by the State on the adequacy of representation and impact on efficiency…”

Refuting the petitioners’ argument that the findings of the study were inadequate, the Bench stated,

“The methodology which was adopted by the Ratna Prabha Committee has not been demonstrated to be alien to conventional social science methodologies. We are unable to find that the Committee has based its conclusions on any extraneous or irrelevant material

…Even if there were to be some errors in data collection, that will not justify the invalidation of a law which the competent legislature was within its power to enact. After the decision in B K Pavitra I, the Ratna Prabha Committee was correctly appointed to carry out the required exercise. Once that exercise has been carried out, the Court must be circumspect in exercising the power of judicial review to re-evaluate the factual material on record.”

Formal v. Substantive Equality

In his judgment, Justice Chandrachud had occasion to draw a distinction between formal and substantive equality. Justifying the need for reservation in our society, he said,

“For equality to be truly effective or substantive, the principle must recognise existing inequalities in society to overcome them. Reservations are thus not an exception to the rule of equality of opportunity. They are rather the true fulfillment of effective and substantive equality by accounting for the structural conditions into which people are born.”

He also discussed the relationship between Articles 16(1) and 16(4) of the Constitution.

“If Article 16(1) merely postulates the principle of formal equality of opportunity, then Article 16(4) (by enabling reservations due to existing inequalities) becomes an exception to the strict rule of formal equality in Article 16 (1). However, if Article 16 (1) itself sets out the principle of substantive equality (including the recognition of existing inequalities) then Article 16 (4) becomes the enunciation of one particular facet of the rule of substantive equality set out in Article 16 (1).”

Efficiency in administration

The Court also countered the argument that reservation would adversely impact efficiency in administration, calling it a “stereotypical assumption”.

“This is stereotypical because it masks deep-rooted social prejudice…Efficiency of administration in the affairs of the Union or of a State must be defined in an inclusive sense, where diverse segments of society find representation as a true aspiration of governance by and for the people…

…Our benchmarks will define our outcomes. If this benchmark of efficiency is grounded in exclusion, it will produce a pattern of governance which is skewed against the marginalised. If this benchmark of efficiency is grounded in equal access, our outcomes will reflect the commitment of the Constitution to produce a just social order.”

Providing reservations for SCs and the STs is not at odds with the principle of meritocracy, the Court went on to hold. This view was buttressed by the fact that the 2018 Act envisions a statutory period of officiation before a candidate’s promotion is confirmed.

Arguments that the Act violated the creamy layer concept laid down in Indra Sawhney v. Union of India were rejected for having no bearing to the validity of the 2018 Act.

Retrospective effect of the 2018 Act

The Court upheld the retrospective effect of the Act from 1978, stating,

“Since promotions granted prior to 1 March 1996 were protected, it was logical for the legislature to protect consequential seniority. The object of the Reservation Act 2018 is to accord consequential seniority to promotees against roster points. In this view of the matter, we find no reason to hold that the provisions in regard to retrospectivity in the Ratna Prabha Committee report are either arbitrary or unconstitutional.”

On the basis of the above, the Bench upheld the validity of the Act, and dismissed the petitions filed in the case.

A number of Senior Counsel including Rajeev Dhavan, Shekhar Naphade, Indira Jaising, Basava Prabhu Patil, Dinesh Dwivedi, Nidhesh Gupta, and V Lakshminarayana appeared for the parties and intervenors.

Read the judgment: