Home case analysis B.K. Pavitra vs. Union of India (2019)

B.K. Pavitra vs. Union of India (2019)

September 12, 2024

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This article is written by Shweta Singh. It contains a detailed analysis of the judgement given by the division bench of the Supreme Court of India in the case of B.K. Pavitra v. Union of India (2019). It exhaustively explains every aspect dealt with in this case. In addition to this, it also provides an in-depth analysis of the judgement along with important precedents cited by the Supreme Court.

Table of Contents

Introduction

In the case of B.K. Pavitra v. Union of India (2019) (hereinafter referred to as “this case” or “present case”), the division bench of the Supreme Court has put at rest the long-standing controversy regarding issues like reservation in promotions and consequential seniority. In addition to addressing such issues, the court in this case has also elaborated on concepts like substantive equality and the relationship between merit and efficiency. The Supreme Court, in this case, reiterated that reservation is not a fundamental right under Article 16(4); rather, it works as an enabling provision wherein the government is vested with the authority to make provisions for reservation in appointment and promotion in favour of the backward section of society, if it feels that they are not adequately represented in public service posts under the government. This case is also interesting for the fact that it provides a new interpretation of the concept of efficiency under Article 335 of the Constitution of India and excludes the idea of the creamy layer from being applicable to the appointment of Scheduled Castes and Scheduled Tribes.

Details of the case

Name of the case: B.K. Pavitra v. Union of India (2019)

Name of the court: Honourable Supreme Court of India

Date of the judgement: 10 May, 2019

Parties to the case:

Appellant: B K Pavitra and Ors.

Respondent: The Union of India, The state of Karnataka, and SC and ST Engineer’s welfare association

Represented by:

Appellant: Dr Rajeev Dhavan

Respondent: Mr Basava Prabhu S Patil

Equivalent citations: AIR 2019 SUPREME COURT 2723, AIRONLINE 2019 SC 275, 2019 LAB IC 4074, 2019 (4) AKR 258, (2019) 2 ESC 495, (2019) 2 SERVLJ 198, (2019) 4 KANT LJ 1, 2019 (4) KCCR SN 280 (SC), (2019) 8 SCALE 205, 2019 (9) ADJ 56 NOC, AIR 2019 SC (CIV) 2067

Type of the case: Civil Appeal No. 2368 of 2011

Bench: Honourable Justice Uday U. Lalit, Honourable Justice D.Y. Chandrachud.

Author of the judgement: The judgement was authored by Justice D.Y. Chandrachud.

Statutes referred

Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act, 2002 – Sections: 3, 4, 5, 7, and 1(2)
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 – Sections 3, and 4
Constitution of India – Articles: 14, 15, 16, 200, and 335

Background of the case

Reservation in promotion with consequential seniority has always been a contentious issue. The courts in India have many times been called upon to decide the validity of providing reservation in promotions as it entails granting extra privileges to the SC/STs community, thereby violating the right to equality granted to every individual. The present case has gained extensive attention because it ends the long-lasting debate regarding the constitutionality of the reservation in promotion with consequential seniority. Therefore, in order to understand the basis for such a decision, it becomes important to have a slight knowledge of the background of the case concerning the reservation policy in India. The stance taken by the Supreme Court in various judgements, before this particular matter came before the Supreme Court in the present case.

Indra Sawhney v. Union of India (1993)

The issue regarding the reservation for the first time came before a nine-judge constitutional bench of the Supreme Court in the case of Indra Sawhney v. Union of India (1993) (hereinafter referred to as the “Indra Sawhney case”). The Supreme Court confirmed the provision of reservation for the Other Backward Classes (OBCs), and at the same time, it acknowledged that states have the power to implement reservation measures for OBCs in appointments under Article 16(4) of the Constitution. However, the court stated that this reservation provision does not apply to promotions and should be restricted to a maximum of 50%. Moreover, the court stressed that those belonging to the creamy layer should be excluded from the reservation benefits. This judgement barred the states from introducing reservations in promotions. Due to this judicial decision, the Parliament adopted several constitutional amendments in order to bypass these limitations.

77th Constitutional Amendment Act

After the Indra Sawhney ruling, the government realised that it could not use Article 16(4) of the Constitution of India to implement reservations in promotions for the reserved classes. Since the Supreme Court had unequivocally declared the illegality of reservation in promotions for the Backward Classes, the government chose the legislative route to confer constitutional validity on the provisions granting reservation in promotions to the backward classes. Consequently, in 1995, the government bypassed the impact of the Indra Sawhney case judgement by enacting the 77th Constitutional Amendment Act. The 77th Amendment Act added Article 16(4A) to the Constitution of India. This granted the state the authority to introduce reservations for SC/STs in matters of promotion if the state considered that the SCs and STs were not adequately represented in the service under the state.

Introduction of catch-up rule

After the constitutional recognition of reservation in promotions, the situation arose when the candidates from reserved categories who were promoted ahead of their general category counterparts would become their seniors by virtue of getting promoted early. To address this problem, two very important rulings, namely Union of India And Ors. Etc. vs. Virpal Singh Chauhan (1995) (Virpal Singh case) and Ajit Singh Januja & Ors. vs. State of Punjab & Ors. (1996) (Ajit Singh case), introduced the catch-up rule. This rule prescribed that seniority would be restored to general category candidates who were promoted after the Scheduled Caste/Scheduled Tribe candidates. As a result, they would be able to regain their seniority over the ones from the reserved categories who were promoted earlier.

81st and 85th Amendments Act

In the years 2000 and 2002, respectively, two amendments were introduced to facilitate the reservation of promotions for SC/STs candidates. These amendments were the 81st and 85th amendments to the Indian Constitution. The 81st Amendment brought into existence Article 16(4B). This Article authorised the government to carry forward the unfilled vacancy reserved for the SC/ST candidates in the matter of promotion in the previous year to the next year and therefore came to be known as the carry forward rule. Through the implementation of this Article, the government was allowed to breach the 50% ceiling imposed in the Indra Sawhney case decision on the reservation for a backward section of society. On the other hand, the 85th Amendment brought an amendment to Article 16(4A) and introduced the concept of consequential seniority. The principle of consequential seniority allows reservation candidates to keep their seniority over those from the general category. Thus, if a person from a reserved category is promoted earlier than a candidate from the general category because of the reservation policies, the reserved category candidate holds seniority for the later promotions as well. The introduction of consequential seniority in effect nullifies the catch-up rule introduced by the Supreme Court in the Virpal Singh case and the Ajit Singh case.

Challenge to the 77th, 81st, and 85th Amendments

The constitutional validity of all these amendments (the 77th, 81st, and 85th Amendments) was challenged in the case of M. Nagaraj and others v. Union of India and others (2006) (hereinafter referred to as “the M. Nagaraj case”). Upon hearing the argument, the five-judge bench of the Supreme Court upheld the constitutional validity of the amendments. The court also held that for the state to validly introduce reservations for SC/STs in promotion, they have to satisfy the three compelling necessities. They are as follows:

Backwardness of the SC/STs.
Inadequate representation of the SC/ST.
Efficiency of administration.

Following the M. Nagaraj case, various laws concerning reservation in promotion were struck down by the High Court and Supreme Court on the grounds of non-fulfillment of the criteria provided in the M. Nagaraj case. The B. K. Pavitra case of 2017 was one such case wherein the court struck down the reservation laws on the basis of the M. Nagaraj case judgement. As a result, various states appealed before the Supreme Court to review its judgement passed in the M. Nagaraj case. It was contended that the criteria provided in the M. Nagaraj case have made it difficult for the state to introduce a reservation policy for SC/STs in promotions. Consequently, the five-judge bench of the Supreme Court in the case of Jarnail Singh v. Lacchmi Narain Gupta (2018) (Jarnail Singh case) reviewed the decision delivered in the M. Nagaraj case.

Jarnail Singh v. Lacchmi Narain Gupta (2018)

In the Jarnail Singh case, it was unanimously held by the constitutional bench of the Supreme Court that there was no need to constitute a larger seven-judge bench to review the M. Nagaraj judgement, which was related to the reservations in promotions of the SC/ST individuals. In addition, the court also decided to eliminate the backwardness criterion from the Nagaraj judgement. Moreover, the Court came up with the idea of the creamy layer exclusion, which is applicable not only to other backward classes but also to the SC/ST communities. Thus, the State cannot give reservation benefits in the promotion of SC/ST to individuals who are included in the creamy layer of their respective communities.

The present case

In this background, in 2019, the jurisdiction of the Supreme Court was again invoked to decide upon the validity of the Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of the Reservation (to the Posts in the Civil Services of the State) Act 2002 (hereinafter referred to as the ‘Reservation Act, 2002’). Another main issue that was required to be considered by the court was whether it followed the three criteria provided in the M. Nagaraj case.

Facts of B.K. Pavitra vs. Union of India (2019)

In the year 2002, the government of Karnataka enacted the Reservation Act, 2002, which in effect granted consequential seniority to Scheduled Caste and Scheduled Tribes (ST/SC) employees in Karnataka public employment who are promoted under the reservation policy of India. The constitutional validity of the Reservation Act 2002 was challenged in the case of B.K. Pavitra v. Union of India (2017) (hereinafter referred to as “the B.K. Pavitra case 2017” ). The Supreme Court in this case struck down the Reservation Act 2002 on the grounds that it was violative of Articles 14 and 16 of the Constitution of India. It was held that the state of Karnataka had failed to furnish sufficient data to justify the policy of consequential seniority. The court, in its order, granted a 3-month period to the state of Karnataka to take appropriate steps.

Following the judgement of the Supreme Court in the B.K. Pavitra 2017 case, the state of Karnataka set up a committee known as the Ratna Prabha Committee, which was given the task of coming up with a comprehensive report that would substantiate compliance with the guidelines specified in the M. Nagaraj case. These criteria involved ascertaining the current social and economic status of the SC/STs communities, analysing the representation of ST/SCs in different government departments, and examining the impact of reservation policies in promotion on the efficiency of administration. After taking into consideration the suggestions recommended by the Ratna Prabha Committee, the state of Karnataka enacted 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 (hereinafter referred to as ‘the Reservation Act 2018’). The provisions of Sections 3 and 4 of the Reservation Act 2018 provided for the reservation of promotions and consequential seniority, respectively. These provisions were retrospectively made effective from April 24, 1978. After the Reservation Act 2018 was passed, petitions were filed assailing the validity of the legislation as being ultra vires of Articles 14 and 16 of the Constitution of India.

Issues raised

The constitutional validity of the Reservation Act 2018 raised several issues for the Supreme Court to decide. The main issues that were raised by the court are as follows:

Whether the Reservation Act 2018 can be held unconstitutional for lack of proper assent.
Whether the enactment of the Reservation Act 2018 takes away the basis of the ruling made in the B.K. Pavitra 2017 case.
Whether the basis of the judgement in the case of B. K. Pavitra 2017 has been addressed.

Arguments of the parties

Arguments raised by the petitioners

The arguments raised by the petitioners are as follows:

It was argued by the petitioners that the state legislature, by enacting the Reservation Act 2018, has acted beyond its authority, as such an enactment resulted in overruling the decision provided by the Supreme Court in the case of B.K. Pavitra in 2017. The petitioner raised the argument that there was no difference between the Reservation Act 2002 and the Reservation Act 2018. The legislature simply re-enacted the previous legislation without rectifying its flaws. They further argued that the legislative organ is bound by the provisions of the Constitution of India and hence it can not override the judicial decision without taking away the grounds upon which it was based.
The petitioner contended that, as per the principle of separation of power, which separates the legislature from the judiciary, the state legislature cannot infringe upon the authority of the judiciary by attempting to overturn judicial decisions. It was argued by the petitioner that a judicial ruling could only be reversed by a statute enacted by the competent legislature as provided under the Seventh Schedule of the Indian Constitution. Such legislative power mandates that legislation must alter the legal basis of the original decision upon which it is based. They emphasised the binding nature of the court’s decision unless there were significant legal and circumstantial changes in the laws and conditions underlying the legislation, which had been held invalid by the court.
The petitioner assailed the report of the Ratna Prabha Committee and asserted that the report lacked relevance and failed to follow the guidelines provided by the Supreme Court in the M. Nagaraj case and the Jarnail Singh case.
It was further argued by the petitioners that the Governor of Karnataka sent 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) Bill 2017 (hereinafter referred to as “the Bill”) to the President for consideration without explaining the reason for that action. Despite this action, the state government asserted that there was no legitimate basis for referring the Bill to the President. The subsequent communication and queries exchanged between the state government and the President’s office were deemed insufficient to constitute a valid reference of the Bill to the President.

In crux, the main arguments presented by the petitioners were that it was not within the authority of the legislature to enact a new law overriding the existing legal rulings, provided the underlying basis of the previous law had been substantially altered. It is against the principles of separation of power and it is not permitted to simply enact a new law for the purpose of circumventing a previous legal decision. It was also contended that the report of the Ratna Prabha Committee, upon the recommendation of which the Reservation Act 2018 was proposed to be enacted was flawed and violated the principles laid down in the M. Nagaraj case.

Arguments raised by the respondents

The arguments presented by the respondents are as follows:

The respondents argued that the Reservation Act 2018 was enacted with the object of remedying the existing issue, thereby implying that the legislation mentioned above is curative in nature. Therefore, enactment of such legislation did not amount to infringement of the power of the judiciary and is not violative of the doctrine of separation of powers.
It was further argued by the respondent that the legislature had absolute authority to collect data for public welfare and legitimate purposes. They contended that the report prepared by the Ratna Prabha Committee through the compilation of several pieces of data was in accordance with the guidelines prescribed under the M. Nagaraj case and Jarnail Singh case.
It was also argued by the respondents that the Governor had the power to exercise his discretionary power with regard to the Bill under Article 200 of the Constitution of India. It is upon his discretion to either give his assent to the Bill, withhold its assent, or send it to the President for his consideration in situations where there is any confusion regarding the applicability of any of the provisions of the law. They stated that the President’s assent is essential to preventing potential constitutional challenges that may arise in the future. Therefore, the Governor, in sending the Bill for the President’s assent, exercised his discretionary power to negate any possibility of complications or issues arising due to the complex constitutional framework.

At the outset, the main contention of the respondent was that the enactment of the Reservation Act 2018 could not be struck down by the court since the act fulfils the criteria provided under the M. Nagaraj case. The report prepared by the Ratna Prabha Committee justified that the state had a compelling reason to provide for reservations for SC/STs in promotions.

Important laws discussed in B.K. Pavitra vs. Union of India (2019)

Right to equality v. reservation

Fundamental rights are guaranteed under the Constitution of India to protect and safeguard the basic human rights of an individual. One of the fundamental rights is the right to equality. The right to equality is one of the essential rights that guarantees equality before the law for people of all castes, races, religions, places of birth, and genders. It includes the elimination of discrimination in employment, the abolition of untouchability, and the removal of titles. Articles 14, Article 15, Article 16, Article 17, and Article 18 of the Indian Constitution elaborate on the right to equality. This basic right is the foundation for all other rights and privileges given to Indian citizens; therefore, it is one of the vital guarantees in the Constitution of India.

The right to equality can be differentiated into formative and substantive equality. Formative equality would result in strict rules of equality, wherein no individual shall be discriminated against in accessing public offices, places, or in public matters. Any deviation from this rule would lead to an exception to the right to equality. The substantive right to equality, on the other hand, envisages that for equality to be effective in its truest form, it must acknowledge and address the existing inequalities present in society. Reservation is thus not an exception to the right to equality but rather a means to achieve true equality by accounting for the structural disadvantages an individual suffers from birth.

Article 16(1) of the Constitution of India stipulates that every individual shall be treated equally in matters of employment and appointment to any post falling under the authority of the state. Article 16(4) of the Constitution of India, on the other hand, mentions that the provisions of Article 16 shall not apply if the state decides to provide reservation in appointment to the SC/STs and other backward classes considering their inadequate representations in these appointments. If Article 16(1) only defines the concept of formal equality of opportunity, then Article 16(4) is a departure from the strict observance of formal equality as stated in Article 16(1). Nevertheless, if Article 16(1) itself establishes the principle of substantive equality, then Article 16(4) becomes part of the expression of a particular aspect of the principle of substantive equality as specified in Article 16(1). In other words, providing reservation is not an exception to the right to equality but an essential aspect of realising true equality for every individual with respect to their social and economic status.

During the debate in the Constituent Assembly concerning the principles of equality enunciated under Article 16, it has been vehemently asserted by the members that in order to achieve true equality of opportunity, it is important for the Constitution to expressly recognise the existing inequalities in society.

Subsequently, in the case of State of Kerala & Anr vs. N. M. Thomas & Ors. (1975), a constitutional bench of the Supreme Court interpreted Article 16(4) as a facet of the right to equality under Article 14 of the Constitution of India. It was observed by the court that Article 16(4) might be regarded as a violation of Article 16(1) if the equality of opportunity mentioned in Article 16(1) is just a simple numerical equality and does not consider the social, economic and educational backgrounds of Scheduled Castes and Scheduled Tribes. Nevertheless, if the equality of opportunity as stated in Article 16(1) means real material equality, then Article 16(4) is not a deviation from Article 16(1); rather, it highlights the degree to which opportunity for everyone can be extended, even to the extent of introducing reservations.

Efficiency of administration

The term efficiency of administration has not been defined under the Constitution of India. However, the term has been used under Article 335, which ensures the maintenance of the efficiency of administration while considering the appointments of SC/STs to public services and positions. Through seventy years of constitutional jurisprudence related to reservations, the Supreme Court of India has laid emphasis on the principles of efficacy & merit in adjudicating the legality of different reservation policies in India. The court, through several of its landmark judgements, such as the Indra Sawhney case and the M. Nagaraj case, has established that the reservation policies enacted under Article 16(4) of the Constitution should comply with the limitations outlined in Article 335.

In the case of General Manager, Southern Railway. v. Rangachari (1962), it was held that a balance must be struck between reservation policies and administration efficiency. This implies that in order to make provisions for reservations for the backward sections of society, it should be kept in mind that, in doing so, the efficiency of administration is not compromised. The court further mentions that reservation policies should be applied cautiously and measures should be taken to avoid the creation of monopoly, and unfair treatment resulting in disadvantage to other employees.

Furthermore, the case of Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India (1981) illustrates that it should be the foremost purpose to maintain efficiency in administration, which, in turn, serves the common interests of the public rather than solely benefiting a specific group. Therefore, any actions taken regarding the claims of Scheduled Castes (SCs) and Scheduled Tribes (STs) must align with this paramount need to maintain administrative efficiency. It is widely recognized that an effective administration is achieved by allowing open recruitment based on merit, where excellence is the primary criterion and the emphasis is solely on equality. This approach ensures that the most qualified individuals are selected, regardless of factors such as religion, caste, gender, descent, place of birth, or residence. In the case of Janki Prasad Parimoo v. State of Jammu and Kashmir (1973), the court underlined the necessity of accurately specifying backward classes so as not to include socially and educationally advanced populations in the category. Such inclusion might subvert the main aim that has been attempted to be achieved through the provisions of reservation. Additionally, during the selection of candidates for important public positions, any reservation policy for the backward class needs to be approached with greater attentiveness. This is because efficiency as well as the public interest must always be the top priorities.

However, the Supreme Court, in its 1985 ruling in the case of K. C. Vasanth Kumar v. State of Karnataka (1985) firmly and conclusively dismissed the merit argument as provided in the aforementioned cases. Justice Chinnappa Reddy stated that whenever a reservation is discussed, the privileged always raise the issue of efficiency. According to them, only the most talented and brightest ones are eligible to occupy a seat in civil service posts and move up the ranks. However, Justice Chinnappa Reddy stated that this is not always the case. The civil service is not a perfect place and not all those from privileged backgrounds are always efficient. There’s an idea that people of higher castes or classes who get non-reserved posts on the basis of merit will ultimately be more efficient than those in reserved positions. This presumption is unjust and shows the elitist views of the privileged classes.

The Supreme Court in the present case also dealt with the interpretation of the term efficiency under Article 335 of the Constitution of India. The court explained that Article 335 should not be interpreted based on the unfair assumption that SCs and STs promoted through roster points are less efficient or that efficiency decreases when they are appointed. Such assumptions are unfair because they stem from deep-seated social biases. The measure of administrative efficiency should not be based on an abstract ideal reflected in the performance of candidates from the open category. Instead, efficiency in administration should be defined inclusively, ensuring that diverse sections of society are represented, reflecting the true essence of governance for the people. The court emphasised that efficiency should be defined inclusively, considering the representation of diverse segments of society. The court further highlighted the constitutional mandate for inclusion and equal citizenship, asserting that inclusion is essential for a well-governed society. It concludes by rejecting the idea that efficiency and consideration of SCs’ and STs’ claims are mutually exclusive, advocating for an approach that integrates both principles to achieve a just social order.

M. Nagaraj Case

In the present case, one of the main issues was whether the state, before enacting the Reservation Act 2018, fulfilled the criteria provided under the M. Nagaraj case. The Supreme Court also mentioned this case in numerous places while delivering its judgement in the present case. Therefore, it becomes important to understand the decision held by the Supreme Court in the M. Nagaraj case. In the case of M. Nagraj, the constitutional validity of the 77th, 81st, and 85th amendments was challenged on the ground that these amendments were against the basic structure of the Constitution of India. The 77th Amendment granted reservations in promotions to Scheduled Castes and Scheduled Tribes. The 81st Amendment enabled states to carry forward vacancies that could not be filled for one year to other years without reducing the 50% reservation limit. The 85th Amendment gave consequential seniority to the candidates who were promoted early due to reservations.

The Supreme Court, after analysing their validity, declared that these amendments, which resulted in the addition of Articles 16(4A) and 16(4B), were in accordance with Article 16(4). They neither modified the context of Article 16(4) nor excluded the criteria of backwardness and inadequate representation for providing reservations. It was held by the court that the challenged amendments were only applicable to SC/STs and did not take away any of the constitutional requirements, including a 50% reservation limit, the creamy layer, or the difference between SC/STs and other backward classes.

In addition, the Supreme Court highlighted that the idea of reservation outlined in Article 16(4) is subject to three constitutional prerequisites: the underrepresentation of a certain group in public employment, their backwardness, and the general efficiency of administration. The court stated that the requirements are still in effect even though the challenged constitutional amendments were passed. The court further stated that the problem to be discussed was not whether reservation was allowed but rather the degree of its application. If the number of reserved seats for Scheduled Castes, Tribes, and others exceeds a reasonable limit, it could be in violation of the principle of equality as stated in Article 16(4) of the Constitution. The level of the reservation should be evaluated on the basis of the particular case. Backwardness and underrepresentation are valid grounds for the government to use the reservation in public employment. Nevertheless, if the court decides that the reservation under state law is excessive, it may declare it unconstitutional because it would be in conflict with the constitutional requirements.

The Supreme Court had confirmed the constitutional validity of reservation in promotions but had also required the states to collect the quantitative data that proves the backwardness and underrepresentation of the concerned group in public employment, in addition to compliance with Article 335. The court had put strong stress on the fact that even if the state has a good reason like backwardness, underrepresentation, and the need to keep administrative efficiency, the reservation provisions would not violate the basic constitutional requirement of maintaining the 50% ceiling in the reservation, excluding creamy layer and not extending the reservation indefinitely.

Judgement of the case

In this case, the Supreme Court upheld the validity of the Reservation Act 2018, affirming that it aligns with the provisions of the Constitution of India. The court emphasised that the legislature had been given extensive authority under the law of the land to conduct important public-purpose activities like data collection. The court acknowledged the legislature’s power to establish the Ratna Prabha Committee, which was tasked with the duties of data collection, consolidation, analysis, and compilation. In conclusion, the court upheld that the actions of the legislature, including the establishment of the committee, were within its legal mandate and consonant with constitutional principles.

The court further held that the respondents were in compliance with the standards set out in the M. Nagaraj case and the Jarnail Singh case. Besides, the Bench made a noteworthy observation, implying that the concept of the creamy layer was not applicable in cases that involved consequential seniority. Therefore, the court simultaneously strengthened the base of consequential seniority in reservations and cleared the confusion that the creamy layer principle does not apply to the Scheduled Castes and the Scheduled Tribes, thus again confirming its earlier position that was laid down in the Indira Sawhney judgement.

It was further held by the Supreme Court that the state of Karnataka had successfully remedied the basic issues that rendered the law ineffective and unconstitutional in the case of B. K. Pavitra in 2017. This correction was done within the legal powers of the State. Concerning the relevancy of the data collected by the Ratna Prabha Committee, the court concluded that the data in the present case was relevant and thus the state could make suitable legislation about reservations in promotions and consequential seniority in civil services on government jobs. Thus, the court held that the legislature, in enacting the Reservation Act 2018 on the recommendation of the Ratna Prabha Committee, had neither overstepped the power granted to the judiciary by the Constitution of India nor contradicted the court’s mandate.

The court, in its judgement also addressed the arguments pertaining to reservations hampering administration efficiency. The court disagreed with such a proposition and instead pointed it out as a ‘stereotypical preconception’ that is merely a veil for social discrimination. It emphasised that efficiency in administration should be understood in an inclusive manner, reflecting the true aspiration of governance by and for the people. Therefore, the only way to have total efficiency in government is through inclusive representation of the diverse population. The court highlighted that the standards we set for effectiveness would shape our outcomes. If efficiency is built on exclusion, it will end up making governance disadvantageous to marginalised communities. Contrarily, if the concept of efficiency is built upon equal access, such a concept embodies the commitment of the Constitution to build a just social order. The court additionally recognised that the reservation given to the SCs and the STs was not against merit but aligned with the principles of meritocracy. This is buttressed by the Reservation Act 2018, which includes a statutory period of assessment of the candidates before confirming their promotion to ensure that merit remains the major criterion.

The court upheld the retrospective effect of the Reservation Act 2018 from 1978 by observing that since promotions that came up before March 1, 1996, were protected, it was fair that the law also protected the seniority status that materialised through those promotions. The court affirmed that the suggestion of the Ratna Prabha Committee to apply the Reservation Act 2018 retrospectively was neither unfair nor unconstitutional.

On the basis of the above findings and observations, the Supreme Court in the present case held that the Reservation Act 2018 is constitutionally valid, which had been enacted by the government after duly fulfilling the mandate provided in the M. Nagaraj case and dismissed the petition filed in this case.

Issue-wise judgement of the case

Whether the Reservation Act 2018 can be held unconstitutional for want of proper assent.

While deciding this particular issue, the Supreme Court pointed out that the Constitution of India provides under Article 200 that the Governor will either give his assent by signing the bill passed by the state legislature, withhold the assent, or refer the bill to the President for consideration. Article 201 on the other hand, provides that where the bill is reserved by the governor for the consideration of the President, in that case, a President may give his assent to the bill or withhold its assent. On the basis of analysing the aforementioned Articles and the precedents propounded in the previous case, the Supreme Court negated the arguments asserted by the appellants that the Reservation Act 2018 needs to be held unconstitutional for want of assent. It was held by the court that after the Governor reserved the Bill (which subsequently turned into the Reservation Act 2018) for the President’s consideration, it became the obligation of the President to either affirm the Bill or reject it. Since the President granted his approval to the Bill, the requirements and directives stipulated in Article 201 of the Constitution were duly fulfilled. Moreover, the court also held that the validity of the President’s assent could not be challenged before a court of law, hence it is non-justiciable. Accordingly, the court concluded that the Reservation Act 2018 cannot be struck down as unconstitutional for lack of proper assent, thereby dismissing the arguments raised by the appellant regarding the validity of an assent to the Bill.

Whether the enactment of the Reservation Act 2018 takes away the basis of the ruling made in the B.K Pavitra 2017 case.

The Supreme Court in the B.K Pavitra 2017 case made the guidelines given in the M. Nagaraj case the foundation of its ruling. These guidelines provided that for the purpose of exercising the enabling power outlined under the provisions of Article 16(4A), the state government had to justify the necessity of providing reservations to ST/SC. This necessity could be proved by collecting quantifiable data showcasing the lack of representation of ST/SCs in different government departments, their backwardness, and the impact of reservation policies in promotion on the efficiency of administration. Consequently, the Supreme Court in the B.K. Pavitra 2017 case held that the State of Karnataka had failed to collect such data that is mandatory for providing reservation in promotion and to provide for consequential seniority as per the provisions of Article 16(4A). Therefore, on this ground, it was held by the court that the Reservation Act 2002 was unconstitutional.

The Supreme Court in the present case, after examining the judgement given in the B.K. Pavitra 2017 case, observed that the B.K. Pavitra 2017 case did not bar the state from collecting the database, which is the compulsory precondition to exercising the enabling power under Article 16(4A) of the Constitution. It emphasised that the legislature had absolute authority to enact laws and this power was applicable to enacting laws with both retrospective and prospective effects. The legislature cannot directly overrule the decision of the court; it can, however, amend existing laws or pass new ones to deal with the issues raised by the court’s ruling. Such an enactment would remove the basis of the judgement upon which the law was held to be invalid by the courts in exercising their power of judicial review. This also includes the passing of curative legislation, which is permissible under constitutional principles and is not considered a violation of judicial power. Applying such observation to the Reservation Act 2018, which was challenged in this case, the Supreme Court found that the Reservation Act 2018 did not nullify the judicial ruling passed in the B.K. Pavitra 2017 case but instead acted on the underlying reasons that led to the decision to hold the Reservation Act 2002 invalid. Therefore, the Reservation Act 2018 could not be considered invalid as it had been enacted by removing the basis of the ruling in the B.K. Pavitra 2017 case.

To support its decision on this particular issue, the Supreme Court referred to several of the earlier decisions of this court that dealt with the same issue. The court referred to the case of Utkal Contractors & Joinery (P) Ltd. v. State of Orissa (1987) wherein the court stated that under Articles 245 and 246 of the Constitution, the legislature has the power to make a judicial decision ineffective by passing a valid law. It underscores that there is no bar on the retroactive application of legislation, as the legislature is competent to pass the laws both retrospectively and prospectively within their legislative capacity and subject to constitutional limitations. It was further established by the court in this case that legislative enactments may render judgments or orders of the court ineffective by changing the basis of those judgements or orders, which is a common practice in validating acts. These enactments, focused on fixing the reasons for the ineffectiveness or unconstitutionality of actions or proceedings, in no way interfere with the power of the judiciary. However, it was clarified that the legislature has no authority to overrule, reverse or set aside a judicial decision by way of a declaration or without removing the basis of the judgement.

The court also referred to the case of State of Tamil Nadu v. Arooran Sugars Ltd. (1996) to support its decision. In this case, the constitutional bench of the Supreme Court recognised the authority of the legislature to enact a law with retrospective effect in order to rectify an error identified by the court. Therefore, it was held that enacting such a law did not nullify the writ or usurp the judicial power. By addressing the deficiency in the law, the legislature acts within its scope of authority.

The Supreme Court in the present case, following the judgements provided in the above case, observed that a declaration by a court of a law’s invalidity did not restrict the legislature from addressing the underlying reasons for that declaration and curing the defect. While remedying the defect, it becomes essential for the legislature to understand the reasons behind the invalidation since these reasons are the basis upon which the law has been declared invalid. The legislature could not just disregard the declaration without considering the grounds why the law was deemed unconstitutional. For instance, if the law has been declared unconstitutional due to the lack of authority of the legislative body to enact it on a particular subject. Only a legislator with the proper authority can then enact a new law that covers the subject. In the same manner, if a law was declared ineffective as a result of a violation of fundamental rights, a new regulation must be drafted in such a way that these freedoms are respected. Thus, the final test is whether the legislature has acted within its jurisdiction to correct the reasons for the earlier law’s constitutional defect.

The Supreme Court in the end also referred to the case of Madan Mohan Pathak vs. Union of India & Ors. (1978) (Madan Mohan Pathak case), which has been extensively relied upon by the petitioner in asserting its contention that the legislature, by enacting the Reservation Act 2018, had nullified the basis of the B.K. Pavitra 2017 case judgement. The Supreme Court rendered the aforementioned case as distinguished from the facts of the present case. It was held that the Madan Mohan Pathak case deals with the situation in which the law was passed by the legislature to override the writ of mandamus issued by the Calcutta High Court regarding the payment of bonuses under an industrial settlement. It did not relate to the situation where the law enacted was declared unconstitutional and the basis of the judgement was sought to be rectified.

Whether the basis of the judgement in the case of B. K. Pavitra 2017 has been addressed.

The B.K. Pavitra 2017 case held the Reservation Act 2002 unconstitutional since the state failed to collect data on the parameters outlined in the M. Nagaraj case. Subsequent to the decision delivered in the B.K. Pavitra 2017 case, the state of Karnataka set up the Ratna Prabha Committee. The committee was tasked with collecting data and submitting a report on the parameters of the adequacy of representation, backwardness, and overall efficiency. The collection of such data was declared mandatory in the M. Nagaraj case before exercising the enabling power conferred under Article 16(4A) of the Indian Constitution. On the basis of the report, the state legislature enacted the Reservation Act of 2018. The report of the Ratna Prabha Committee was contested by the petitioner on the grounds that the data collected by the committee was irrelevant and erroneous. Refuting these arguments by the petitioners, the court held that the methodology utilised by the Ratna Prabha Committee was not shown to deviate from conventional social science methodologies. There was no proof to show that the Committee based its findings on irrelevant material; therefore, its sampling methodologies could not be considered arbitrary. The court confirmed the validity of sampling as a data collection method; thus, it concluded that the exercise could not be invalidated just because of the fact that data from some departments or entities was not evaluated. The data gathered was from a wide range of thirty-one departments, thus it was deemed adequately representative. The state thoroughly investigated the appropriate and authentic data and then made the final decisions. Moreover, the court reiterated that judicial review cannot be used to investigate factual matters related to data gathering, compilation, and analysis.

The court noted that after the State government had formed an opinion based on a report submitted by an expert committee that collected, analysed, and compiled relevant data, it became impossible for the court to decide that the state had failed to provide compelling reasons for providing reservations outlined in the M. Nagaraj case. Even if there are some mistakes in the data collection process, this alone does not invalidate a law that the competent legislature was authorised to enact. The court stressed that the decision in the B. K. Pavitra 2017 case was followed by the establishment of the Ratna Prabha Committee, which was the right step to be taken in conducting the required assessment. After the evaluation has been done, the court must be careful in using its power of judicial review to reexamine the factual material that was on the record. Hence, the court should be cautious and not overrule the findings of the State’s conclusions based on the data offered by the expert committee, as long as the process was carried out in accordance with the law.

Critical analysis of B.K. Pavitra vs. Union of India (2019)

A two-judge bench ruling delivered by the Supreme Court on May 10 could significantly influence the ongoing debate on reservations in a way that a five or nine-judge constitutional bench has not been able to do so for the last three decades. The judgement stands out for conclusively ending a long-standing debate over the concept of merit and efficiency and for its verdict that the principle of the creamy layer does not apply to SC/ST candidates. The court, in its judgement aptly refuted the argument that appointment based on merit increased efficiency by asserting that the efficiency of an administration depends upon the action taken by the officials once they get appointed or promoted; efficiency can not be judged at the level of conducting the selection process. This case, thereby, becomes a tool for demonstrating that there exists no antithesis between the efficiency of administration and the claims of the SC/ST candidates to an appointment; rather, both are the means of realising the constitutional ideals of equality. It also creates an understanding that considering SC/STs as worthy of participating in the affairs of governance is crucial for ensuring equality. This will be achieved by adopting an inclusive approach that demands that every section of society that has been historically oppressed gets a say in the affairs of governance. Therefore, inclusion cannot be separated from a well-governed society.

Conclusion

The decision of the Supreme Court, in this case, is of high importance because it showcases the court’s reasoning on wide-ranging issues and how it swiftly moves from discussing specific issues of administrative jurisprudence to broader principles of substantive equality and merit. The court’s decision on the substantive question law concerning the constitutionality of the seniority law is rooted in its understanding of the Constitution’s equality principles. The court, through its decision, had underscored that constitutional principles are of utmost importance and explained how such principles guide the court in making informed decisions. By critically examining the concepts of merit and efficiency rather than taking them as self-evident, the court emphasised that judicial reasoning always emanates from the perspective of the original constitutional vision. It was further highlighted by the court that the constitutional vision recognises these concepts as intricately engraved in our social realities, together with inequalities. This kind of judicial reasoning has remained underdeveloped in our constitutional history; however, the decision delivered by the Supreme Court in this case represents an important step in its evolution.

Frequently Asked Questions (FAQs)

Is reservation a fundamental right?

Reservation is not a fundamental right under Article 16(4) of the Constitution of India. Various court decisions, including the Indra Sawhney and M. Nagaraj cases, have clarified that the provisions of Article 16 are enabling in nature and mandate the government to introduce reservation policies if they consider that any backward section of society is not adequately represented in the public job posts.

What is meant by consequential seniority?

The principle of consequential seniority allows reservation candidates to keep their seniority over those from the general category. Thus, if a person from a reserved category is promoted earlier than a candidate from the general category because of the reservation policies, the reserved category candidate holds seniority for the later promotions as well.

What are the three criteria established in the M. Nagaraj case?

The constitutional validity of all these amendments (the 77th, 81st, and 85th Amendments) was challenged in the M. Nagaraj case. Upon hearing the argument, the five-judge bench of the Supreme Court upheld the constitutional validity of the amendments. The court also held that for the state to validly introduce reservations for SC/STs in promotion, they have to satisfy the three compelling necessities. They are as follows:

Backwardness of the SC/STs.
Inadequate representation of the SC/ST.
Efficiency of administration.

What is meant by the catch-up rule in reservation?

This rule prescribed that seniority would be restored to general category candidates who were promoted after the Scheduled Caste/Scheduled Tribe candidates. As a result, they would be able to regain their seniority over the ones from the reserved categories who were promoted earlier.

References

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B.K. Pavitra vs. Union of India (2019)

Introduction

Details of the case