By Kitdor H. Blah
The November 16, 1992 Supreme Court judgment in ‘Indra Sawhney vs. Union of India’ that held that, “Adequate representation cannot be read as proportionate representation” has been read to mean that there is a conflict between ‘Adequate Representation’ & ‘Proportional Representation.’ But is this so? If yes, then where does the conflict lie? To get the answer, we must:
1. Examine Article 16(4) and how it has been applied up to the date of this judgment.
2. Examine the Court Judgment dated 16th Nov., 1992 not only for what it says, but also for what it does not say
3. Examine how Article 16(4) is applied in the above case ‘Indra Sawhney vs. Union of India.’
The principle of Adequate Representation is found in Article 16(4) of the Constitution of India. It is the Constitutional Provision for Reservation for backward classes in public recruitments. How was this Article applied before the Supreme Court Judgment dated November 16, 1992? The Ministry of Home Affairs vide Resolution No. 42/21/49-NGS dated 13.9.1950 provided 12.5% & 5% reservation for SCs & STs. But after the 1961 census, where the population of SCs & STs was found to be 14.64% & 6.80% respectively, the Ministry of Home Affairs vide Resolution No. 27/25/68-Estt. (SCT) dated 25.03.1970 increased the reservation for SCs/STs 15% & 7.5%. So, the concept of Adequate Representation was applied as Proportionate Representation. So, in this precedent, there is no conflict between Adequate Representation & Proportionate Representation.
The DoPT’s policy on reservation for SCs & STs says that in the case of direct recruitment on all India basis by open competition, reservation for SCs & STs is given at the rate of 15% & 7.5%. It also says that, “….in case of direct recruitment to Group C & D posts which normally attracts candidates from a locality or region, percentage of reservation for SCs/STs is generally fixed in proportion to the population of SCs & STs in the respective State/Union Territory.” So, when it comes to application, there is no conflict between Adequate Representation & Proportional Representation, as that is the precedent by which Adequate Representation has been applied to SCs/STs.
So, what did the Supreme Court Judgment dated November 16, 1992 say? Let us not read the Supreme Court judgment only for what it says, but also for what it does not say. It only says that Adequate Representation cannot be read as Proportionate Representation, but it does not say that Adequate Representation should not be applied as Proportional Representation. So, the conflict lies in meaning, not in application. Therefore, the Court judgment dated November 16, 1992 does not conflict with the precedent for STs, where Adequate Representation is applied as Proportional Representation.
Moreover, the November 16, 1992 Supreme Court judgment pertains to the Reservation for OBCs, whereby the Court justified the recommendation of the Mandal Commission in granting 27% reservation for OBCs. The reservation quota for OBCs came out of two factors – The existing SC/ST quota of 15% & 7.5% & the 50% ceiling held by the Court. So, Article 16(4) was applied to OBCs in this judgment, in such a way that the total Reservation does not cross the 50% ceiling, but also without touching on the existing SCs/STs quota. So, it is clear that the Court deemed it an adequate representation to provide Reservation to OBCs at such percentage (27%) that it does not violate the 50% ceiling or the existing SC/ST quota (15% & 7.5%). So, by this judgment, Adequate Representation was not applied as Proportionate Representation for OBCs but the precedent of proportionate representation for SCs/STs was not infringed either. In other words, while the Judgment held that OBCs need not be given Reservation according to the proportion of their population, it upheld the existing SCs/STs quota, which was fixed according to the proportion of their population.
To drive this point home, I request the reader to again look at the DoPT’s policy on reservation as well as para’s 2.1 & 2.3 of Ministry of Heavy Industries & Public Enterprises (MoHI&PE) ‘Reservation Brochure’ No. DPE-GM-/0001/2016-GM-FTS-5921 dated 17.10.2016. While both the DoPT & the MoHI&PE provide Reservation of 15% & 7.5% for SCs/STs, which is according to the proportion of their population as per the 1961 Census, they also provide that “reservation for the Scheduled Castes and Scheduled Tribes in case of direct recruitment to Group C and Group D posts, normally attracting candidates from a locality or a region, is generally fixed on the basis of proportion of their population in the respective States/UTs. Reservation for Other Backward Classes in such cases is fixed keeping in view the proportion of their population in the respective States/UTs subject to a limit of 27% and total reservation for SCs, STs and OBCs should not exceed 50%.”
Lastly, to establish once and for all that Reservation for SCs/STs is implemented according to the proportion of their population, especially at the level of the state government, I request the reader to again look at the above mentioned MHA Resolution No. 27/25/68-Estt. (SCT) dated 25.03.1970, at para 2, which states thus: “In posts and services, recruitment to which, is made on a local or regional basis, the percentages of reservation for Scheduled Castes and Scheduled Tribes shall be revised wherever necessary after taking into account the percentages of population of Scheduled Castes and Scheduled Tribes in the various States and Union Territories according to the 1961 Census.”
Thus, it is clear from the above Reservation policies, that while for STs/SCs, the reservation is fixed in proportion to their population, the reservation for OBCs is fixed after taking into consideration the STs/SCs reservation, and also by capping the total reservation at 50%. So, as per the Supreme Court Judgment dated 16th November, 1992, Article 16(4) is applied in this way to the Reservation for OBCs, but also without infringing on the proportionate representation of SCs/STs, which is the precedent, even as per the MHA Resolution dated 25.03.1970, which precedes them.
On the basis of the above considerations, this writer hopes that he has established the precedent of proportionate representation with respect to reservation for STs/SCs. This writer also hopes that he has established that the Supreme Court Judgment that, “Adequate representation cannot be read as proportionate representation” is not in conflict with the application of Article 16(4) as proportionate representation for SCs/STs, as the conflict lies only in meaning, and not in how it is applied. And this writer hopes that he has established that Article 16(4) is applied to OBCs in such a way that it does not infringe on the established SCs/STs quota and it does not cross the 50% ceiling.
However, the conflict between Adequate Representation & Proportionate Representation may still persist in the minds of many people in our state, in view of the fact that the proportion of the ST/SC population in the state of Meghalaya is above 85%. And based on this fact, it may seem that the conflict still persists because para 94 A of the same Supreme Court Judgment says that, “Just as every power must be exercised reasonably and fairly, the power conferred by Clause (4) of Article 16 should also be exercised in a fair manner and within reasonably limits – and what is more reasonable than to say that reservation under Clause (4) shall not exceed 50% of the appointments or posts, barring certain extra-ordinary situations as explained hereinafter. From this point of view, the 27% reservation provided by the impugned Memorandums in favour of backward classes is well within the reasonable limits. Together with reservation in favour of Scheduled Castes and Scheduled Tribes, it comes to a total of 49.5%.”
Does this judgment nullify the above established precedent of proportionate representation with respect to SCs/STs? But the above judgment has to do with fixing the reservation for OBCs, such that at any time, the reservation for OBCs shall be fixed in such a way that, ”Together with reservation in favour of Scheduled Castes and Scheduled Tribes, it comes to a total of 49.5%.” The capping of 50% was seen as determining the limit of OBCs quota, not the existing SCs/STs quota, which is based on the proportion of their population. So, the above judgment is not to be read as infringing on the precedent of proportionate representation with respect to SCs/STs.
Moreover, para 94A of the Judgment also says that, “While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the mainstream of national life and in view of conditions peculiar to and characteristic to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.” So, if we are to understand the 50% ceiling as limiting the OBCs quota, and not infringing on the precedent of proportionate representation for SCs/STs, and in view of the above exception to the 50% ceiling rule, the question is, is Meghalaya a special case as per the above exception?
Para 93 of the same Judgment has the following observation: “As to what would be a suitable reservation within permissible limits will depend upon the facts and circumstances of each case and no hard and fast rule can be laid down, nor can this matter be reduced to a mathematical formula so as to be adhered to in all cases. Decided cases of this Court have no doubt laid down that the percentage of reservation should not exceed 50%. As I read the authorities, this is however, a rule of caution and does not exhaust all categories. Suppose for instance a State has a large number of backward class of citizens which constitute 80% of the population and the Government, in order to give them proper representation, reserves 80% of the jobs for them can it be said that the percentage of reservation is bad and violates the permissible limits of Clause (4) of Article 16? The answer must necessarily be in the negative. The dominant object to this provision is to take steps to make inadequate representation adequate.” This observation not only justifies Meghalaya as a special case, with over 80% of its population being backward classes, but it also justifies the application of proportionate representation as it states clearly, “Suppose for instance a State has a large number of backward class of citizens which constitute 80% of the population and the Government, in order to give them proper representation, reserves 80% of the jobs for them can it be said that the percentage of reservation is bad and violates the permissible limits of Clause (4) of Article 16? The answer must necessarily be in the negative.”