The Union Cabinet, chaired by Prime Minister Manmohan Singh [ Images ], had approved the proposal to amend Article 16(4) of the Constitution to remove the term inadequate representation to justify reservations in promotions and appointments.
This issue has a long history and has been dealt with many times by the Supreme Court in the Indra Sawhney and the Chinnaya case. The question is whether this sort of a reservation is necessary for SC/STs when they already have a reservation at the entry level.
"It is merely restoring the view of the larger bench of the Supreme Court and hence is a legitimate exercise. This bill requires immediate implementation as SCs and STs continue to be denied their legitimate quota in the upper parts of service where decision-taking power vests. It was the intention of the framers of the Constitution to ensure that adequate representation be given to the historically disadvantaged section not only quantitatively but also qualitatively," Kumar told rediff.com.
This issue has a long history and has been dealt with many times by the Supreme Court in the Indra Sawhney and the Chinnaya case. The question is whether this sort of a reservation is necessary for SC/STs when they already have a reservation at the entry level.
"It is merely restoring the view of the larger bench of the Supreme Court and hence is a legitimate exercise. This bill requires immediate implementation as SCs and STs continue to be denied their legitimate quota in the upper parts of service where decision-taking power vests. It was the intention of the framers of the Constitution to ensure that adequate representation be given to the historically disadvantaged section not only quantitatively but also qualitatively," Kumar told rediff.com.
"Reservation only at the entry level in the lower rungs of service is not enough and hence reservation in promotion will go a long way in achieving the original objective in providing adequate representation qualitatively."
"Two earlier decisions of the Supreme Court in the Indra Sawhney and the Chinnayas case had declared that the SCs are backward and nothing need to be further proved to show their social standing. However, there was another judgment that insisted on empirical data to prove the backwardness of the SC and this ran contrary to the decision of the larger benches of the Supreme Court. Hence, what the Parliament is doing is restoring the view of the larger benches."
"The other debate is regarding merit based promotions and whether this bill would rob meritorious persons of their promotions in a bid to make way for the SC/STs? Professor Kumar explains. What is merit and who has defined it. The present concept of merit is designed by the upper castes to exclude the backward classes from their legitimate quota. This was answered a century ago by the Justice Miller Committee."
"It had said that merit should never be measured only on the basis of academic marks secured in an examination. It should also be based on other traits like honesty, integrity compassion and basic common sense in which it is no body's case that the backward class is anyway inferior to the upper class."
"Reservation is always provided only to ensure that what legitimately deserved to them by virtue of their proportion in the population. They will not be given anything more than what is proportionate to their population. This is done to ensure that the proportionate quota is not robbed by the other castes. Reservation in promotion is only a mechanism to protect and to give them an opportunity from being robbed by the other castes."
In order to understand this better, let us read Article 14 of the Constitution first:
The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India [ Images ]. Article 16, which deals with equality of promotion in government jobs, states:
There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. No citizen shall on grounds only of religion, race, caste sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of any employment of office under the State.
Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of or any local or other authority within, a State or Union Territory, any requirement as to residence within that State or Union Territory prior to such employment or appointment.
Nothing in this Article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State, is not adequately represented in the services under the state.
Clause (4-A) of the article states: Nothing in this article shall prevent the State from making provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the
Scheduled Tribes, which in the opinion of the State are not adequately represented in the service of the State.
Clause (4-B) of the article states: Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or Clause (4-A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty percent reservation on total number of vacancies of that year (Constitution 81st Amendment Act, 2000).
In 1990, the government of India had decided to reserve 27 per cent of the posts for OBCs and this was taken up to the Supreme Court.
It was contended that SC and STs would be deemed as backward classes within the meaning of Article 16(4).
In the Indra Sawhney case, the Supreme Court said, "A caste can be and quite often is a social class in India. If it is backward socially, it would be backward class for the purpose of Article 16(4). Among non-Hindus, there are several occupational groups, sects and denominations, which, for historical reasons, are socially backward. They too represent backward social collectives for the purpose of Article 16(4)."
"Neither the Constitution nor the law prescribes the procedure or method of identification of backward classes. Nor is it possible or advisable for the court to lay down any such procedure or method."
"Creamy layer' can be, and must be excluded. It is not correct to say that the backward class of citizens contemplated in article 16 (4) is the same as the socially and educationally backward classes referred to in article 15(4). It is much wider."
"The 'State' has the first form an opinion about which castes/ community could be classified as the 'backward class' and whether the class so identified is adequately represented in the services under the state or not. After completion of this exercise, nothing shall prevent the State from making reservations."
In the Rajendran Vs Union of India case, the Supreme Court had said that Article 16(4) does not confer any right on the SCs and STs and there is no constitutional duty imposed on the government to make reservations for SCs/ STs, either at the initial stage of recruitment or at the stage of promotion.
"16(4) confers a discretionary power on the State to make reservations of appointments in favour of backward class of citizens which in its opinion, are not adequately represented in the services of the State."
In the Indra Sawhney case, the Supreme Court while dealing with the issue of reservation in promotion had said that reservation in promotion is unconstitutional but permitted it reservation, for Scheduled Castes and Scheduled Tribes to continue for a period of five years.
Following this, the constitution was amended in 1995 and this was when article 16 (4-A) was incorporated.
According to this article the state governments were allowed to provide for reservation, in matters of promotion, in favour of the Scheduled Castes and Scheduled Tribes.
In the Vinod Kumar case, the court held that the government providing for lower qualifying marks in matters of promotion for candidates belonging to SC/ST are not permissible.
Following this the government had in 1997 withdrawn various orders of such promotions. However, the government once again decided to restore the relaxations and concessions for promotions.
In 1995, while seeking an amendment to the Constitution, the government had said that the Scheduled Castes and the Scheduled Tribes have been enjoying the facility of reservation in promotion since 1955.
The Supreme Court in its judgment dated November 16, 1992 in the case of Indra Sawhney and Others vs. Union of India and Others, however, observed that reservation of appointments or posts under article 16(4) of the Constitution is confined to initial appointment and cannot extent to reservation in the matter of promotion.
"This ruling of the Supreme Court will adversely affect the interests of the Scheduled Castes and the Scheduled Tribes. Since the representation of the Scheduled Castes and the Scheduled Tribes in services in the states have not reached the required level, it is necessary to continue the existing dispensation of providing reservation in promotion in the case of the Scheduled Castes and the Scheduled Tribes."
"In view of the commitment of the government to protect the interest of the Scheduled Castes and the Scheduled Tribes, the government have decided to continue the existing policy of reservation in promotion for the Scheduled Castes and the Scheduled Tribes. To carry out this, it is necessary to amend article 16 of the Constitution by inserting a new clause (4A) in the said article to provide for reservation in promotion for the Scheduled Castes and the Scheduled Tribes."
"As per 4A nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State."
The amended 16 (4A) first came into play in 1995. This was done to ensure that the promotions that had been affected in the past remained unaffected by the order of the Supreme Court in the 2006 Nagraj case.
In this order the Supreme Court had said that the states need to justify quota in promotions by giving evidence of inadequate representation and backwardness of beneficiaries.
One of the first to implement this was the BSP government in Uttar Pradesh [ Images ]. It had implemented quota in promotions, but then the same was struck down by the Allahabad high court and later upheld by the Supreme Court which reiterated the Nagraj case.
The matter stood thus and ever since then there has been pressure by Mayawati [ Images ] to introduce a bill in Parliament, which would nullify the latest order of the Supreme Court that had struck down reservations in promotions.
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