Given
the increased focus on current developments in General Studies Mains paper, the
conventional information which we go through from books serves just as a
background to understand the current developments and questions shall be mostly
on the current developments. With this object in mind, I do here present a
small write-up on Constitution (117th Amendment) Bill which was
introduced in Rajya Sabha on September 5, 2012.
Background
Our constitution has
provided for Right to Equality. Article 16(1) says, “There shall be equality of
opportunity for all citizens in matters relating to employment or appointment
to any office under the state”. An exception to this is given in article 16(4)
which states “the state may reserve any post or appointment in favor of any
backward class of citizens who, in the opinion of the State, are not adequately
represented in the services under that State. Accordingly, members from
scheduled castes and Scheduled Tribes had been provided reservation, including
reservation in promotion, in public employment since 1955. However, the Supreme
Court, in Indra Sawhney’s case repealed reservation in promotion to SCs/STs
(this case also laid down many other important points with regard to
reservation in public employment. The other points are beyond the scope of this
article). To override this judicial pronouncement, the Government of India
brought about “Constitution (77th amendment) Act, 1995” inserting
article 16(4A) which read , “nothing in this article shall prevent the state
from making provisions of reservation in matters of promotion to any class or
classes of posts in the service under the state in favor of scheduled castes or
scheduled tribes, which, in the opinion of state, are not adequately
represented”. The validity of this amendment along with two other constitutional
amendments was challenged in Supreme Court in Nagaraja case. The SC upheld these constitutional amendments but
laid down three conditions in the grant of reservation in promotion – ‘backwardness’,
‘inadequacy of representation’ and maintenance of efficiency’.
The
contents of the bill
The HCs of Rajasthan and
Allahabad struck down the provision of reservation in promotion in these two
states by virtue of SC’s judgment in Nagaraja’s
case. To override this judicial pronouncement, “Constitution (117th
amendment) bill” was introduced. This bill provides that all the SCs/STs
notified in the Constitution shall be deemed ‘backward’ and nothing in article
335 (which lays down for balancing reservation with the maintenance of
efficiency) shall prevent the state in providing reservation in promotion. The
bill also seeks to delete the reference to ‘adequacy of representation’ from
article 16(4).
Other Issues
·
The criteria laid down by the SC in Nagaraja’s case seems to be problematic:
the establishment of “backwardness” to any community while granting reservation
in promotion would introduce indirectly the ‘test of creamy layer’ which is
laid down as test of backwardness only to OBCs, but not to SCs/STs by the SC
only in Indra Sawhney’s case. The proposed bill seeks to remedy this error by
explicitly laying down that all the SCs/STs specified in Constitution shall be
deemed ‘backward’.
·
The SC is not clear as to what ‘inadequacy
of representation’ mean. According to the text of article 16, it is the duty of
state to determine inadequacy of representation. However, the basis to
determine this inadequacy has not been laid down in the constitution. Thus, the
determination of the basis for determining the inadequacy of representation hinges
upon the judicial pronouncements. The SC is also not clear on this aspect.
There is no clarity as to if proportional representation would mean adequate representation
or is the former irrelevant in arriving at the latter. The proposed amendment
seeks to call a halt to this confusion by doing away with the need to determine
the adequacy of representation.
·
The need to ‘maintain efficiency’ has
been done away with by stating that article 335 is not an impediment.
Arguments
Any attempt to provide
reservation in public employment is bound to be welcomed with the cries of ‘loss
of efficiency’. One school argues that reservation has nothing to do with the
loss of efficiency since it is based on conservative understanding of ‘merit’.
The other school argues that the reservation is meant to make ‘unequals equals’
but by providing reservation in promotion, this amendment does the reverse – ‘it
treats equals unequally’. Thus, it seeks to bring about ‘equality of outcomes’
in place of ‘equality of opportunity’ as envisaged by the constitution.
Instead of completely
doing away with the clause pertaining to maintenance of efficiency, it would
have been far more legitimate to argue for a far more meaningful understanding
of efficiency before the SC. Removal of test of backwardness could lead to garnering
the fruits of reservation by progressive sections of SCs/STs while the sections
to whom these fruits are directed are excluded from them. So it would have been
more rational had the government sought to formulate the mechanism to reach the
most deserving sections of SCs/STs
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