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Updated: December 20, 2012 01:00 IST

Legitimate aim, unconstitutional means

Anup Surendranath
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The 117th Constitution Amendment Bill has failed to define low representation of SCs/STs which is necessary to make reservation in promotions possible

There is certainly a strong argument to be made in favour of reservation for the Scheduled Castes and the Scheduled Tribes in promotions but the 117th Constitution Amendment Bill that was passed in the Rajya Sabha is a poor attempt at achieving that goal.

Article 16(4A) of the Constitution permits reservation in promotion posts for the SCs/STs but Supreme Court judgments have imposed certain conditions for the state to exercise its power under this provision. The original draft of the 117th Constitution Amendment Bill sought to amend Article 16(4A) to influence the constitutional discourse on three critical aspects of the debate on quotas in promotions — determining the backwardness of SC/ST beneficiaries; impact on efficiency; and empirical data to establish the lack of representation of the SCs/STs in promotion posts.

Although political negotiation between the UPA government and the BJP resulted in the agreement to drop the provision in the Bill that would permit the state to ignore concerns of efficiency, the position that the state need not demonstrate the inadequacy of representation whatsoever is constitutionally suspect.

Backwardness of beneficiaries

Through a rather erroneous decision in M. Nagaraj v. Union of India, the Supreme Court required the state to demonstrate the backwardness of SC/ST beneficiaries each time quotas in promotions were provided for under Article 16(4A). To appreciate the error of the Supreme Court in Nagaraj, it is important to understand the difference in the constitutional status of the SCs/STs and Other Backward Classes (OBCs). After the judgment in Indra Sawhney v. Union of India, individuals in the ‘creamy layer’ of OBCs could not be the beneficiaries of the reservation policy. However, the Supreme Court in Indra Sawhney explicitly held that no such exclusion would be applicable to the SCs/STs. The reasons for applying the concept of ‘creamy layer’ only to the OBCs and not to the SCc/STs could be debated but the difference in treatment is due to the composition of groups and the nature of marginalisation they suffer from. Therefore, the Supreme Court’s suggestion in Nagaraj that the SC/ST beneficiaries of quotas in promotions must be ‘backward’ is without constitutional merit. The constitutional position is that all SCs/STs are deemed to be backward and there cannot be a further determination of ‘backwardness’ among them. The 117th Constitution Amendment Bill rightly seeks to do away with the confusion created by the judgment in Nagaraj by clarifying that all SCs/STs are deemed to be backward.

The main focus of Article 335 of the Constitution is the requirement of the state to acknowledge the claims of the SCs/STs while ‘making appointments to posts and services’. However, Article 335 also states that the acknowledgement of such claims shall be consistent with the concerns of efficiency. However, judgments of the Supreme Court have used this provision to strongly suggest, without any real supporting arguments, that reservation and efficiency necessarily pull in different directions. Though the provision permitting the state to provide reservation in employment finds mention in the Fundamental Rights chapter of the Constitution and Article 335 is in the chapter on Special Provisions Relating to Certain Classes, the Supreme Court has used Article 335 to check the power of Parliament to provide reservation in promotions even while it is exercising its power to amend the Constitution. Adjudicating on the validity of three constitutional amendments providing for reservation in promotions with consequential seniority, the Supreme Court in Nagaraj (2006) held that the state could exercise its power under these amendments only if it could demonstrate that efficiency continued to be maintained. The Supreme Court did not clarify the precise content of such a requirement.

Concerns of efficiency lie at the heart of objections to quotas in promotion. The BJP articulated such a concern with the text of the 117th Constitution Amendment Bill by making its support contingent on the government agreeing to drop the words “nothing in Article 335 shall prevent the state from making any provision for reservation in matters of promotion”. Article 335 has a rather complex constitutional history. In the Constituent Assembly, it originated as a provision to acknowledge the claims of all ‘minorities’ when the initial sentiment was not to provide reservation in public employment. Instead of providing reservation in public employment, it was agreed to put in a weak provision that acknowledged the claims of minorities consistent with concerns of efficiency. However, all of that changed in the proceedings of the Constituent Assembly after December 1949. In a clear response to the violence of Partition, the term ‘minorities’ was dropped and the provision subsequently acknowledged only the claims of the SCs/STs. Reservation in employment was then permitted for ‘backward classes’ under Article 16(4) but not for the ‘minorities’. Article 335’s origin was, therefore, in a context where reservation was not contemplated for public employment. The central role it has come to play in contemporary constitutional discourse on reservation in public employment is rather puzzling.

The empirical battle

Article 16(4A) as it currently stands permits the state to provide reservation in promotions on the condition that the SCs/STs are “not adequately represented in the services under the state.”

It is on the meaning of this condition that the disagreement between the Supreme Court and governments seeking to provide quotas in promotions is at its most intense. Through the 77th, 81st, 82nd and 85th Constitution Amendment Acts (between 1995 and 2001), Article 16(4A) was inserted and amended to give the state power to provide quotas in promotions with consequential seniority. One of the conditions imposed by the Supreme Court in Nagaraj while upholding the constitutionality of these amendments was that every time a government sought to exercise its power under Article 16(4A), it must take up a specific exercise to demonstrate that the SCs/STs were not adequately represented. It was in Suraj Bhan Meena v. State of Rajasthan (2010) that the Supreme Court first struck down an attempt by a State government to provide quotas in promotions on the ground that it had not undertaken such a specific exercise to establish the inadequacy of representation of the SC/STs. The genesis of the 117th Constitution Amendment Bill can be traced to the Supreme Court’s judgment in U.P. Power Corporation Ltd. v. Rajesh Kumar (April 2012), which struck down Uttar Pradesh’s attempt to provide quotas in promotions on grounds similar to those in Suraj Bhan Meena.

Short-sighted

The draft of the 117th Constitution Amendment Bill has a rather short-sighted response to the Supreme Court’s demand that the inadequacy of representation of the SCs/STs must be demonstrated on the basis of each cadre. In essence, the Supreme Court’s position is that if the state wants to provide quotas in promotions for clerks, it should demonstrate inadequate representation of the SCs/STs among clerks . The response of the 117th Constitution Amendment Bill is to remove any reference to the requirement of demonstrating inadequacy of representation. The Supreme Court’s demand that the cadre must be the basis for demonstrating inadequacy of representation is far from ideal. A cadre-based determination of inadequacy of representation of the SC/STs would not result in an accurate picture of representation of the SC/STs in public employment as a whole. The 117th Constitution Amendment Bill should have clarified that a cadre-based determination of inadequacy of representation was not required by the Constitution and that it would be sufficient for the State to demonstrate inadequacy of representation in public employment as a whole. Instead, the Bill that has been passed in the Rajya Sabha goes to the other extreme and no longer requires the state to demonstrate any sort of inadequacy of representation.

Even if the Bill does go through the Lok Sabha, it is very likely to be challenged in the Supreme Court where it will be tested for violation of the basic structure of the Constitution. The demand to do away with the requirement of ‘inadequacy of representation’ was specifically debated in the Constituent Assembly and rejected. The Constituent Assembly rejected the demand because it believed it would give the state unacceptable power in terms of determining the beneficiaries in the context of the general equality protection within the Constitution. Removing the requirement to establish inadequate representation of the SCs/STs would certainly make it easier for the state to provide quotas in promotions but it goes against the fundamental principle on which the decision to provide reservation in employment was based. All those clichés about learning from history might come back to haunt this constitutional amendment when the Supreme Court decides upon its validity.

(Anup Surendranath is an Assistant Professor of Law, National Law University, Delhi, and a doctoral candidate at the Faculty of Law, University of Oxford)

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As the world is moving ahead with globalisation,we are still stuck in
casteism.Reservations were permitted by Dr Br Ambedkar only for a
certain period of time.He told to remove the system of reservation
after some years.Instead of following it, our politicians have chosen
to appease people on the basis of caste,by providing them
reservations.The constitution mentions 'right to equality'.It means
all the citizens should be treated equally and justly irrespective of
race,religion,caste and gender.There are many SC's and ST's who are
affluent but are unduly reaping the fruits of reservations while
people from other castes,eventhough they be very poor are unable to
manage even the fee of the collges.Even though they be very talented
are unable to get admitted into good college.Even the cutoff marks for
the SC's and ST's is lowered.And they need to pay less college fee as
well as hostel fee.There is only division of rich and poor and poor
should be given free education.Thats the way.

from:  Shaik Rizwan Ahmed
Posted on: Dec 21, 2012 at 21:04 IST

Instead of moving forward India is going backwards by proposing such
undemocratic bills.
Efficiency in governance is one thing which shouldnt be sacrificed.
In the long run its the country which will suffer from this, along with
the ones proposing such bills.

from:  sagar
Posted on: Dec 21, 2012 at 05:09 IST

Parliament democracry nowadays is at its ebb low . the issue of "reservation" simply contradicts "merit based system". The due process of reservation in promotion is undermined with earliers learning from Supreme Court Judgements and our paliamentarians are keen to follow "procedures established by law" to remove restriction effectuated by the SC viz test of adequacy of representation, loss of efficiency . In our country political motives and vested interests can do anything typically called "vote bank politics". If Lok sabha do pass the bill , SC can suo moto can take a hearing but judiciary then has its own limitations. The paliamentarians must more explore the matter either through a standing committee before voting to encase future of our country people who still had to take a bit lead itself prior to seek employment.

from:  rishi
Posted on: Dec 20, 2012 at 19:32 IST

what about the majority minority women, i.e. 50% of the
population, who are being discriminated and under-represented
everywhere? what about just APL so called high class poor
families? what about rural-govt school students who are not
skilled-soft on par with urban-elite(not-more-talented-than-rural counterparts) school students, thus unable to get admissions in
elite jobs? Is there no novel way for the development?
what the surety that the promotion quota is only for 10
years. As the quota is based on outcomes, which has not shown so
far, will it fructify? It is like giving freebies like laptop
sans broadband connectivity, tv sans electricity connectivity.
Policy makers better concentrate in basic social infrastructures,
uniformed syllabus, quality education which is the key to more
inclusive society for which quota is being demanded.

from:  skp singh
Posted on: Dec 20, 2012 at 19:18 IST

It's true that a lot of people in India even today do not have access basic public utilities due
to backwardness in educational,economic,social areas.But such people are not limited to any
specific class.They are present even in so called upper classes.Blanket Reservation policy
followed in India from Independence has failed to achieve the desired objectives.its common
to find that mostly those people from reserved class who are already better in their
social,economic,educational aspects are benefitting from it and those who genuinely need it
are left out.So government should look out for a overhaul of reservation policy so that those
who are actually backward, get benefits of it.

from:  M.D.Chavan
Posted on: Dec 20, 2012 at 16:11 IST

Points regarding the reservation in promotion of jobs:
1.First of all, this concept is itself a flaw.
2.Reason for low representation of SCs/STs in the public employment
dates back to pre-independance , as the people belonging to these
communities were not educated in the past and came into the main
society only after independance with some efforts of our beloved
leaders.
So it is obvious that they are proportionally low in compared to that
of other communities.
3.The solution for above problem is to provide education to them by
any means(i.e. by reservation )as it is reasonable in this case
because they are not the same level as others , hence for providing
equality of opportunity reservation is reasonable.
4.But in case of Jobs , the reservation concept is itself
misunderstood by many, as this aims for equality of outcome which is
very detrimental for the whole country in all accounts.

from:  Tharun
Posted on: Dec 20, 2012 at 15:54 IST

You create inequality on the basis of birth and deny basic human treatment to people for ages, of course for you own aggrandizement, And when on the modern principle of Equity this Inequality turns against you, you seek Equality ! Reality is we don't want equality, who want to give up one's dominance on society.People keep prejudice against SC/ST/Dalit etc when they get into service.They cant prevent their entry due to reservation, so they take revenge during promotion and don't allow these people to rise. Had people been cooperative human this scheme would have succeeded in increasing their representation in services. They are dumb,inefficiency,foolishness is in their blood is tantamount to saying they are polluted an should not enter Temple !
They need our support and not antipathy.

from:  brijesh
Posted on: Dec 20, 2012 at 15:25 IST

The Government of India has always been concerned about the welfare of
downtrodden especially Scheduled Castes and Scheduled Tribes. As a
part of the affirmative action, reservation in promotion had been
available to the SCs and STs since 1955. However, some decisions of
the Supreme Court like in Indra Sawhney, Veer Pal Singh Chauhan and S.
Vinod Kumar cases had caused certain effects on the scheme of
reservation in promotion for SCs and STs. To overcome these effects,
the Government had brought four Constitutional amendments, namely,
77th, 81st , 82nd and 85th amendments.This is the political funda to
collect the vote of DCs and STs by mayawati, congress, bjp and all
other parties. Ans sp knows that he has loss because even whatever he
does for them but they cant vote for sp.Govt. believes in
egalitarian.Then where it goes on the name of reservation.

from:  munna
Posted on: Dec 20, 2012 at 13:50 IST

"Legitimate aim, unconstitutional means" is a deep insight article by "The Hindu". One side we talk about the equality enshrined in the article 16 in our constitution , on the other hand we are also creating the gourge in our society . I think reservation at the time of entry gives the opportunity for equality to the underprivileged section , but in the later of services it will diminish the importance of merit which is not fruitful for indian society and which will lead to discrimination among citizens.

from:  sumit gupta
Posted on: Dec 20, 2012 at 11:28 IST

Reservation in promotion is not required as People already selected through reservation and its there time to start moving on and working hard.

Instead, Reservation should be implemneted for SC/ST in the private sector and MNC's as the Govt Jobs are meagre, Only the Jobs are now in private sector.

from:  susheel
Posted on: Dec 20, 2012 at 11:15 IST

This is totally an unconstitutional amendment. Every post and promotion
should be given on merit basis. India's position in world is low only because
of these type of laws or acts ,which bring the inferiority and inefficiency in
every department. There are lot of general caste people,who are backward
in every aspect and are living in extreme poverty. Government is not doing
anything for them. Only creamy layer of reserved categories are getting
benefits of reservation. If any one member of a reserved category family
has got a public post of any level,then they should must be excluded from
reservation next time. And this reservation in promotion should be stopped
at any cost because with this the general category people are feeling
deserted and it will create inefficieny in administration and also anger,hate
etc. will prevail in society that can even lead to civil war among different
castes in future.

from:  manvinder
Posted on: Dec 20, 2012 at 11:09 IST

I must commend your paper on this article about the Constitutional amendment to allow quota in promotions for SCs and STs as passed by the LokSabha.It goes directly against the Supreme Court's rulings on this matter and one can expect a reference to the Supreme Court.

from:  S.N.Iyer
Posted on: Dec 20, 2012 at 10:43 IST

This system of reservation is inherently flawed and illogical.The main contention of oppressed classes are they being not treated equal in social and educational sphere.Logical and apt action from govt should be to make arrangements for opening schools which can provide free and on par education to all such people and toughen the law so that no one can dare to humilate people due to their caste.But what they are doing instead is tokenism,just making vocal,well to do SC/STs happy for vote bank.The ground reality remains the same.An analogy could be one trying to restore the balance of a topling house not by strengthing its base(which can solve it permanently)but by putting logs of woods to support which ever side threatens to dismantle the house.If every one(including those pro-reservation)wants SC/STs and OBCs situations to improve,they should fight for universal access to them for education and justice,not for few seats which can better life of some, leaving most in deprivation.

from:  Chandan Ray
Posted on: Dec 20, 2012 at 10:37 IST


Learn Right of Equality to Irish Constitution & USA Democracy of
India depends on Election
1 therefore no specific provision in Election Commission for Elected
Representative That if any Elected Representative will grab public
funds and any Elected Representative got any remarks of Garbing Public
funds that he /her cannot contest Election Again till he/her can not
get clean chit to Justice system of India .
2 As per Article 266 as per the Constitution of India there is not
Public Accounts Commission of India and no State Public Accounts
Commission (Duty of Public Accounts Commission of India implement
Transparency & Accountability agenda in public Accounts

3 As per Article 14 and 16 and 46 and Article 330 to 342 Constitution
of India had only given social security to SC/ST/ and others weaker
section others community go into the hell
4 As per Article 325 and Article 14 why there is reservation for
SC/ST / seats
Its a violation of Right of Equality
all above issues are effecting weaker section in every community of
India .
and Public Accounts Commission and No Provision in Election Commission
on Election Representative on garbing public funds its Effecting
Global Economy .
Therefor a legal etoppel a Patent law for Constitution of India

from:  Daljeet Singh
Posted on: Dec 20, 2012 at 10:29 IST

This is a desperate attempt of Mayawati to appease her vote bank.
If the bill will alter the basic structure of constitution and if passed can be challenged in the Supreme Court for constitutional validity then why its has been passed in Rajya Sabha.
It is very difficult to find a common parameter that would measure the degree of backwardness among all classes. The state governments who demand reservation in promotion should provide specific data on inadequate representation, level of the post and also magnitude of responsibility of the post.

from:  Divya Prakash
Posted on: Dec 20, 2012 at 10:21 IST

as we all know that constitution assembly drafted elephantine Indian
constitution within a short period of approximately slightly more than
two years.social backwardness of some classes(sc) n areas (ST) was
impediment in having an equitable society so to get rid of this
backwardness drafting committee gave way to some kind of positive
discrimination for a period of 10 years but after 10 years when govt
found that backwardness is still prevailing in these classes so it
decided to extend it n this this extension
is continued till today .so it's conspicuous that this reservation
policy is not capable of eradicating social backwardness of these
classes n that's very true because this policy diminish economic
backwardness rather than uplifting these classes socially .govt give
this thing a deep thought n must come up with other alternative to do
away with this social backwardness like promoting inter-caste marriages
and making children aware about the horrible consequences of caste system.

from:  Ramakant thakur
Posted on: Dec 20, 2012 at 08:45 IST

While invoking the principle of judging the quotas in promotion vis-a -vis every cadre,the Supreme Court sought to represent SC's and ST's adequately in every rungs of public employment.If we deemed to take representation of SC's and ST's in promotion in public employment as a whole,sooner or later there would be again a demand that there is a inadequate representation of these peoples in higher rungs of public offices.Then there would be one more amendment!

from:  Safiullah Ansari
Posted on: Dec 20, 2012 at 07:42 IST

Anup,
One thing I fail to understand what is the precise objective of
reservations in promotion. Considering the backwardness of SC/ST,
Constitution seeks to give them a level playing field which is
probably the logic for reservation at the entry level. Once a level
playing field is provided, does not reservation to a some extent mean
discrimination against majority? One thing more what exactly does
"adequate representation" seek to achieve. Is it adequate
representation at every level? To me it does not make sense how can
same yardstick "backwardness" be applied to someone who is already in
the services and at par with the rest. Instead of identifying why the
policy of reservation has not yielded desired outcomes at the highest
levels, government is seeking to correct the flaw by manipulating the
outcomes.

from:  Abhishek
Posted on: Dec 20, 2012 at 05:55 IST

After 65 years independents we are still taking guard to escape our
weakness and doing politics to come in power.it is not a right way
to go ahead.what our policy makers are doing?they are making foolish
us in the of reservation.country needs strong attention to abolish
reservation and plot a similar ground for all.how can you say that a
person born in upper caste is getting whatever required for a
dignified life.in the most of the areas there are not any
possibility to distinguish between lower caste or upper caste, they
all are living same,eating same working same. only those benefited
who already in benefit.please stop this game so called reservation
vs reservation and adopt a plan,mission,implementation to eradicate
poverty,unemployment,health concern,hunger,malnutrition etc.all it
possible only when we think & act beyond these tricky & cheaply
exercises.

from:  durgesh upadhyay
Posted on: Dec 20, 2012 at 03:26 IST
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