RESERVATION, EFFICIENCY, AND THE MAKING OF THE INDIAN CONSTITUTION

THE CONTEXT: The Indian Constitution provides for affirmative actions in respect of socially, educationally, and economically (EWS reservation) backward classes of society. However, there exists a notion that the reservations in public employments lower the standards of efficiency in administration. Many Supreme Court verdicts seem to imply this aspect. Thus, this article analyses the interplay between Art 16(4) and Art 335 in the light of Constitutional Assembly Debates to see whether the constitution makers intended to make the “efficiency” criterion for restricting the scope of reservation in public employment.

                                                                RESERVATION: CONCEPT AND MEANING

• Reservation is a tool for bringing the marginalized into the frontline of society. It enables the less privileged sections to grab the opportunities of life. Without positive interventions by the governments, these communities would find it impossible to make it into the mainstream. In India, the constitution itself provides for reservations in public employment, education, electoral democracy, etc.
• Although largely based on caste, the reservation is also given based on domicile, gender, age, disability, and even religion. The core of reservation is social mobility in a highly stratified Indian society. The linkage between caste and life chances and caste and human dignity is well established in India. These groups have faced historical injustices and continue to undergo various disabilities. Thus, reservation aims at social emancipation and social mobility of the less fortunate in India. It is not a poverty alleviation program in the economic sense but is one in a socio-political sense.
• Reservation focuses on the redistribution of social power in Indian society by opening up avenues and opportunities to hitherto excluded.

CONSTITUTIONAL PROVISIONS FOR RESERVATIONS: PUBLIC EMPLOYMENT

• Article 16(3) provides that parliament can make laws to prescribe domicile qualifications for various public employments under the state and the local authority.
• Article 16(4), Equality of opportunity in matters of public employment: The state can make provisions for the reservation of appointments or posts in favor of any backward class of citizens which in the opinion of the state is not adequately represented in the services under the State.
• 16 (4A) was added through the 77^th Constitutional Amendment which provided reservation in promotion for SCs and STs. This article was later amended to provide “consequential seniority” on promotion to these communities.
• 16 (4B) was added through the 81^st Constitutional Amendment to “carry forward” the previous year’s vacancies for next year.
• A General provision under 15(4) also enables the state to take necessary steps for the advancement of socially and educationally backward classes.
• Article 335 provides for “maintenance of efficiency of administration” while considering the claims of the Scheduled Castes and the Scheduled Tribes in the making of appointments to public services and posts. The proviso to 335 deals with reduced evaluation standards for SCs and STs in the promotion.
• Art 320(4): Inter alia, excludes consultation with UPSC in respect of SC and ST’s appointment to government positions.
• It must be noted that the Constitutional Provisions concerning reservations in public employment are only enabling and not mandatory provisions. It means that there is no “Fundamental Right” to the reservation and the state is under no compulsion to provide reservation.

THE RESERVATION VS. MERIT/EFFICIENCY DEBATE: AN ANALYSIS

RESERVATION LEADS TO INEFFICIENCY:

• Because the standards of qualification have been lowered for the” reserved”, they lack the required knowledge and skill needed for the performance of the job.
• Thus the persons recruited in the reserved category cannot perform satisfactorily.
• Hence, the administration becomes inefficient. So they argue for purely merit-based appointments for the sake of efficient administration.
• The Supreme Court of India has consistently referred to the notions of “efficiency” and “merit” while adjudicating the validity of various reservation policies.
• For instance, the Supreme Court has held in several judgments, including M Nagraj 2006 and Jar nail Singh 2018 that the reservation policies made under various provisions of Article 16 of the Constitution would be limited by Article 335.
• Another argument is that even if the reservation is provided, the open category must be filled by persons from the “General Category” only to accommodate merit to the extent possible.

MERIT IS NOT COMPROMISED:

• The constitution does not define the term efficiency in administration. Thus, using a subjective yardstick to measure an undefined criterion lacks validity.
• In BK Pavitra (II) v. Union of India, (2019) the SC  held that “efficiency of administration in the affairs of the Union or a State must be defined in an inclusive sense, where diverse segments of society find representation
•  The “efficiency” construct was used in the pre and colonial era to keep out the lower castes and “Indians” respectively.
• The disproportionate access to resources, socio-economic capital, and networking ties put the dominant classes in a better position to “acquire” merit. Thus, “merit” is not “ purely” competency” but is a product of “privileged existence”
•  An empirical study conducted by Wasserkopfs and Mishra in 2011 has punctured the arguments that “officers of the reserved category are less efficient”. Their study on the number of railway accidents in railway zones proved that zones headed by officers from the reserved category saw a lesser number than those headed by non-reserved officers.
• The Constitutional Assembly debates provided ample evidence that 16(4) and 335 are meant to be standalone articles.    (Read ahead)

INSIGHT INTO THE CA DEBATES: ORIGIN OF RESERVATION AND EFFICIENCY

• The Constituent Assembly, through a resolution on 24 January 1947, had appointed an Advisory Committee to assist the Assembly by drawing upon a “list of fundamental rights, clauses for protecting minorities among others.
• The Sub Committee on FRs drafted Article 10(3) which provided for “reservation in favor of any backward class of citizens, not adequately represented in public service as per the opinion of the state. This article later became 16(4).
• The Sub-committee on Minority Rights’ report covered the claims made by several minority groups: Anglo-Indians, Indian Christians, Sikhs, Muslims, Scheduled Castes, etc. It provided under Art 296 that, “the claims of all the minorities shall be kept in view in making appointments to the public services consistently with the consideration of the efficiency of administration”.
• It was from here that the term “efficiency of administration” was brought in the text of the draft Constitution. The term, however, was not defined. This Article 296 later became Article 335.
• LokanathMisra, a Brahmin from Orissa, argued that the clause puts “a premium on backwardness and inefficiency” and also because it was “not a fundamental right of any citizen to claim a portion of State employment, which ought to go by merit alone”. Damodar Swarup Seth, a Vaishya from United Provinces, felt that reservation in services meant the “very negation of efficiency and good Government”. He argued, “The maintenance of efficiency of administration shall be the only consideration” concerning the public appointment.
• These two articles were drafted by two different committees working on two different subjects. Thus, it can be safely concluded that 16(4) and 335 cover separate “subject matter”
• The draft Articles 10(3) and 296 were discussed and adopted separately by the Constituent Assembly. Article 10(3) was included in the Chapter on justifiable Fundamental Rights and did not contain the term “efficiency of administration”.
• Article 296, adopted on a later date, and did not refer to Article 10(3) at all. Moreover, Article 10(3) explicitly provided for reservation in services for backward classes, while Article 296 made only an assurance that the claims of minorities would be taken into consideration.
• It did not explicitly guarantee the reservation for minorities in the services. It appears that the craftspersons of the Constitution had kept the scope of draft Article 10(3) on a higher pedestal in comparison to Article 296.

THE CONSTITUENT ASSEMBLY ON RELATIONSHIP BETWEEN ARTICLE 16(4) AND ARTICLE 335

The discussion in the Constituent Assembly shows that it was only Article 16(4) which mandated and empowered the State to make reservations for backward classes of citizens, including the Scheduled Castes and Scheduled Tribes. Article 335, as pointed out consistently by members – particularly by those opposed to the reservation, was being treated as a mere directive. The Constituent Assembly never made Article 16(4) subject to Article 335, rather, accepted it as a standalone and overriding provision, as can be understood by Kunzru’s analysis in the Assembly. Reservation, as provided under Article 16(4), was thus not subjected to the notion of efficiency mentioned in Article 335.

EFFICIENCY AND MERIT ARGUMENT: A MYTH?

CA DEBATES:

• BasuMatari, a member from Assam discarded the arguments about “efficiency of administration” as “just dodges to perpetuate class or territorial interests”.
• He observed that the upper castes benefited in the “jobs, the contacts, and the privileges” during the British regime and that they will ensure that their superiority is never threatened or endangered.
• V. I. Muniswami Pillai, a Scheduled Caste member of the Assembly, remarked that the majority communities must remove from their minds that “those who were chosen from these communities for high offices will not be efficient”. He wished that “the claims of the Scheduled Castes will not be forgotten” by the majority communities.
• J. Khandekar, a Scheduled Caste member from the Congress party, endorsed reservation provision in Article 10(3), as he narrated that the Scheduled Castes candidates “are not selected for the posts” because of the biases of the recruitment panelists.

AMBEDKAR’S VIEW:

• The proponents of the efficiency argument relied upon “educational merit” and “competitive examinations” as the “only test which can be taken to guarantee efficiency”. Ambedkar rejected this argument, stating that the undemocratic education system in India had left out the backward classes thereby the open competition actually became closed!
• He presented a case of “administrative utility” and a “moral case” for the backward classes to have a “favored treatment” for their inclusion in the public services. He argued for the inclusion of different communities in public service to address the class bias and aggrandizement which created more harm than good to the administration.
• The advantage of exclusive privileges of education, social power continued for upper castes even in the colonial era.  In his view, the argument of “efficiency” was a method by upper castes to protect their own interests and structural advantages even in the post-independence democratic polity.

SUPREME COURT:

• The apex court rejected the notion that promotes drawn from the SCs and STs are not efficient or that efficiency is reduced by appointing them. This is stereotypical because it masks deep-rooted social prejudice. The benchmark for the efficiency of administration is not some abstract ideal measured by the performance of a qualified open category candidate.
• Administrative efficiency is an outcome of the actions taken by officials after they have been appointed or promoted and is not tied to the selection method itself. The argument that one selection method produces officials capable of taking better actions than a second method must be empirically proven based on an evaluation of the outcomes produced by officials selected through both methods.
• The candidates who score beyond a particular “cutoff point” are considered “meritorious” and others are “non-meritorious”. This is a distorted understanding of the function “merit” plays in society.
• A “meritorious” candidate is not merely one who is “talented” or “successful” but also one whose appointment fulfills the constitutional goals of uplifting the members of the SCs and STs and ensuring a diverse and representative administration.

EFFICIENT ADMINISTRATION VERSUS GOOD GOVERNANCE

• Ambedkar had consistently distinguished the colonial construct of “efficiency of administration” with that of “good administration”. He asserted that a good administration or government is truly representative. In one of the articles, he had noted: It was through an administration that the State came directly in contact with the masses. No administration could do any good unless it was sympathetic… A representative bureaucracy would imbibe the values, aspirations, and ideas of the diverse communities they come from.
• In colonial times also “Indianisation” of public services was based on the notions of representation and inclusiveness, and not on the exclusionary notion of “efficiency”. For instance, the 1858 act of “good government” aimed at increasing associations of Indians in administration. It was a fact that the European bureaucracy constituted the most efficient government possible. At the same time the European bureaucracy, efficient though it was, was condemned as it was found to be wanting in those qualities which make for human administration. In Modern times, Hitler’s bureau was held to be the most efficient, but hated for its evil actions.
• Giving due representation to various social forces would enhance efficiency. “Good Government” meant that efficiency would be measured by the test of representation and inclusion of underrepresented social groups. Providing representation to backward classes would act as a system of countercheck to protect political democracy from being subverted by particular privileged groups. The inputs and concerns of various sections of society need to be part of the policymaking process which requires a representative administration. Moreover, the notion of Good Governance as expounded by the World Bank and United Nations does not view it through the narrow prism of “efficiency” but conceptualizes it in terms of “democracy and equity “among others.

WAY FORWARD:

• Reservation in public employment for communities that are historically marginalized would ensure a representative administration that reflects their diverse interests and challenges.
• Going beyond reservation through quotas, a quota plus approach to ensuring equal opportunities for all by establishing an “Equal Opportunities Commission” can address the problem of discrimination faced by the backward classes.
• To operationalize the ideal of ” sabkasaathsabkavikas and sabkaviswas ” requires affirmative action programs for the less privileged sections of society which ideally should extend to the private sector.
• Through incentives, encouragement, persuasion, etc. The private sector can also be taken on board to open up opportunities for the backward sections. For instance, conceiving and publishing a” Diversity Index” can put moral pressure on private sector employers to employ the Dalits and other marginalized communities.

CONCLUSION:

In India, government employment is seen as a ladder to power and prestige. Given the conspicuous presence of the state in people’s lives, public employment is a much sought-after avocation. Of late the number of vacancies in various posts and services in the governments is shrinking thanks to the ideology of “minimum government and maximum governance”. The competition for the “shrinking pie” has been intense which is accentuated by poor growth in the economy. Thus, the efficiency, merit, and reservation debate must be seen in this background, although the caste hierarchy is also a decisive factor. As the CA debates and recent SC judgment in BK Pavitra II, 2019 have shown, merit and efficiency must be construed in a wider canvass. Efficiency in the administration is not simply a matter of administration per se, but it heavily depends on the larger political system, civil society activism, and political culture. As Kiran Aggarwal Committee on IAS training has observed “what the services need is not mere efficiency, but also ethos, ethics and equity” which are the prime mover of good governance.

DO YOU KNOW ABOUT THE SC VIEW IN BK PAVITRA II 2019 CASE?

BASIS FOR JUSTIFICATION: The Law and the Committee recommendation fulfill the three conditions laid down in the Nagraj Case.

EXPLANATION: The three conditions are:

1. Backwardness” of SC/ST communities,
2. The inadequacy of their representation in the services and
3. The overall impact of reservation on the efficiency of the administration

BASIS FOR JUSTIFICATION: Reservation vs. Merit

EXPLANATION: A ‘meritorious’ candidate is not merely one who is ‘talented ’or ‘successful’ but also one whose appointment fulfills the constitutional goals of uplifting members of the SCs and STs and ensuring a diverse and representative administration.

BASIS FOR JUSTIFICATION: Substantive versus formal equality

EXPLANATION: Reservations are thus not an exception to the rule of equality of opportunity. 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).  SC-ST Reservations Are True Fulfillment Of Effective And Substantive Equality.

BASIS FOR JUSTIFICATION: Efficiency of Administration vs. SC-ST Reservation

EXPLANATION: The criteria of ‘efficiency’ in the administration [a term used in Article 335 of the constitution] of government should not only be a ‘merit-based approach and the need to maintain the efficiency of the administration cannot be construed as a fetter on adopting these special measures designed to uplift and protect the welfare of the SCs and STs. While interpreting Article 335, it is necessary to liberate the concept of efficiency from a one-sided approach that ignores the need for and the positive effects of the inclusion of diverse segments of society on the efficiency of administration of the Union or of a State. It said: “Centuries of discrimination and prejudice suffered by the SCs and STs in a feudal, caste-oriented societal structure pose 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 the aid of fostering the real and substantive right to equality to the SCs and STs.

BASIS FOR JUSTIFICATION: Participatory governance

EXPLANATION: Establishing the position of the SCs and STs as worthy participants in the affairs of governance is intrinsic to equal citizenship. Equal citizenship recognizes governance, which is inclusive, but also ensures that those segments of our society which have suffered a history of prejudice, discrimination, and oppression have a real voice in governance. Inclusion is inseparable from a well-governed society.

 

 

 

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