By: Anirudh Prakash
On February 7, the Supreme Court delivered its verdict in the case of Mukesh Kumar & Anr. Vs The State of Uttarakhand & Ors. The main issue in the appeal is the reservation to SCs and STs in promotions with specific reference to the Government of Uttarakhand. It is not the verdict as a whole but the general conclusive statements pronounced in the judgement negate the rights of SCs/STs/OBCs of reservation as guaranteed by the Constitution. The verdict has intensified the ongoing social unrest against the Citizenship Amendment Act (CAA) and created uproar in Parliament. Forced by the situation, the Union Minister for Social Justice and Empowerment Thaawar Chand Gehlot said, “The government is holding high-level discussions on the matter. I would like to make it clear that GoI was never made a party in the case.” He also added that the order on quota was passed on a 2012 Uttarakhand government decision “when Congress was in power in the state”, in a statement made in the Parliament. Set in this backdrop, it is essential to analyse the implications of the verdict on the justice in general and social justice in particular.
In “A Theory of Justice”, John Rawls identifies two “principles of justice”. First, “each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all”; second, the “social and economic inequalities are to be arranged so that they are helpful to both (a) the greatest benefit of the least disadvantaged, consistent with just savings principle, and (b) attached to offices and positions open to all under conditions of fair equality of opportunity”. The Articles 14-18 of the Constitution were made in consonance with the Rawlsian theoretical propositions of justice so as to adduce the greatest benefit to the socially disadvantaged sections of the people as a matter of citizen’s right. In the current case, by saying that the state is not bound to make reservation, the verdict has skewed the constitutional identity including the basic structure of the Constitution.
As per Article 46 of Directive Principles of State Policy (DPSP), the state has the obligation to protect the SCs/STs from social injustice and all forms of exploitation. Contextualising this mandate to the present case indicates that the inadequacy of SC/ST representation in the public services itself suffice to extend the reservation in the employment. The question of promotion need not to be seen separately as it provides effective participation of SCs/STs/OBCs and other backward sections of the people in the affairs of governance which is of truly participative and inclusive in nature. This was made clear in the judgment of B K Pavitra and Ors Vs The Union of India and Ors (2019). Noted constitutional expert and the former chairman of the first Karnataka Backward Class Commission Ravi Verma Kumar has welcomed the verdict and said that “this is the first verdict in more than 50 years that has given a ray of hope to the Dalits and the Backwards. It has redefined merit and included diversity also as the basis”.
According to this verdict, “establishing the position of the SCs and STs as worthy participants in affairs of governance is intrinsic to an equal citizenship which recognises governance that 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”. This judicial pronouncement was made with reference to “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, 2017” and the verdict was delivered on May 10, 2019. It is unfortunate that the top court in the case of Mukesh Kumar & Anr. Vs The State of Uttarakhand & Ors has not even referred to this important judgement which recognised the criticality of reservation in promotions as a social necessity to arrive at the inclusive citizenship and participatory governance. Rather than this, the verdict has made a sweeping statement that “…there is no doubt that the state government is not bound to make reservations. There is no fundamental right which inheres in an individual to claim reservation in promotions”. This has larger implications on the states moral obligation in providing the distributive justice to mark the beginning of egalitarianism in a socially hierarchal system. The top court has set a bad precedent and missed an opportunity to push the agenda of social justice as envisioned in the Constitution.
The impact of the judgement is that it will be used as a legal base by those state governments only to deprive the legitimate benefits of reservation for SCs/STs thereby perpetuating the existing injustice and to engage in the politics of reservation. A detailed reading of the judgement reveals that the judges frequently referred to the verdict of M Nagraj vs. Union of India (2006) to set aside the Uttarakhand High Court’s directive to collect the quantitative data pertaining to the SC/ST representation in the Department of Public Works. It must be understood that the top court has laid down the principles of “equality of fact” to determine the constitutionality of reservation. Both the verdicts—Nagraj vs. Union of India (2006) and Mukesh Kumar & Anr. Vs The State of Uttarakhand & Ors. (2020) — gave primacy to the quantifiable data (fact) over unquantifiable social sufferings of the SCs/STs. The court, in this case, preferred “proportionate equality” in place of “substantive equality” only to increase the hegemony of the state governments over the disadvantaged sections of the people. With the voices coming both within and outside the ruling BJP, the Centre must file a review petition. This is a good opportunity for the BJP to display its constitutional commitment and more specifically to the cause of social justice. INAV