To issue mandamus or not? – Constitutional issue relating to reservation in promotion
Prameela K
Published on: 3 February 2022, 11:19 am
The Supreme Court's recent judgment in Jarnail Singh & Ors. vs. Lacchmi Narain Gupta & Ors. is welcome to the extent that it clarifies the mist surrounding quantifiable data relating to backwardness pertaining to reservation in promotion, but it remains silent on its enforceability through issuing mandamus to the appropriate government, write RAVI PRAKASH and DIVYA SINHA.
———–
LAST week, a three judge bench of the Supreme Court of India pronounced a judgment in bunch of petitions relating to the issue of 'reservation in promotion' as a fundamental right in favour of Constitutionally protected classes, that is, Scheduled Castes (SCs), Scheduled Tribes (STs) and backward classes [BCs] of citizens as per Article 16(4) of the Constitution of India. The primary issue involved in the present batch of petitions related to whether there should be quantifiable data with regard to adequacy of representation as mandated by a five-judge Constitution bench of the Supreme Court in M. Nagaraj vs. Union of India (2006) and its enforceability by issuing a proper mandamus in appropriate cases.
The Supreme Court upheld the constitutional validity of the Constitution (77th Amendment) Act, 1995; the Constitution (81st Amendment) Act, 2000, the Constitution (82nd Amendment) Act, 2000 and the Constitution (85th Amendment) Act, 2001 in M. Nagaraj, which reads as under:
"The impugned constitutional amendments by which Articles 16(4A) and 16(4B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling-limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBC on one hand and SCs and STs on the other hand as held in Indra Sawhney, the concept of post-based Roster with in-built concept of replacement as held in R.K. Sabharwal." [emphasis added]
