This article first appeared in Niti Central and can be read here.
While the UPA 2 tried to camouflage its real intention of diverting attention from the Coalgate by introducing the 117th Constitution Amendment Bill on reservation in promotions, it did not bother to hide its utter contempt towards the Highest Court of the country while drafting the Bill and the Statement of Objects and Reasons. It is a fact that successive governments have been routinely amending the Constitution to overturn every inconvenient judgement; however so far they have been justifying every amendment on the basis that the legislative intent was different and the concerned judgement has caused impediment in implementing the same. Now we have V Narayanaswamy telling the parliament that the 117th amendment has become necessary because it is not possible to provide the data required by the Court!
Eight out of the nine-member bench of the Supreme Court held in 1992 in the Indra Sawhney case that reservation in promotion was ‘constitutionally impermissible.’ The successive governments and motivated commentators of the media have been systematically ignoring the reason that the court adduced for its decision viz. ‘once the advantaged and disadvantaged are made equal (by having reservation at entry level) and are brought in one class or group, then any further benefit extended for promotion on the inequality existing prior to be brought in the group, would be treating equals unequally. It would not be eradicating the effects of past discrimination but perpetuating it.’
The court in other words made a clear distinction between backwardness prior to entry into service and absence of the same thereafter. Though the Court made this distinction while evaluating the claim of backward classes to promotion in the wake of Mandal Commission recommendations, restricting its application only to BCs will amount to a narrow interpretation of a broad concept and a disservice to the avowed objective of the framers of the Constitution viz. mitigation of inequalities in the society. We will revert to this distinction later.
The government of the day was, however not to be bothered such trivial considerations. It went ahead and passed the 77th amendment providing for reservation in promotion to SC/STs. Though the validity of this and 81st and 85th amendments was upheld in M.Nagaraj & Others vs. Union of India and others, the Court still maintained that a) backwardness b) inadequacy of representation of SC/STs in the services and c) maintenance of overall efficiency of administration have to be established by the government with quantifiable data before making reservation in promotions.
Incidentally this is not a new requirement; Courts over the years have been asking the Centre and States for quantifiable data on how they determined the backwardness of different classes. Various governments have not been sincere to this request. The only reasonable attempt in the last 3 decades aimed at answering this question was the appointment of Mandal Commission. But it relied on the outdated 1931 census and Arun Shourie, amongst other punctured serious holes in its data.
In other words the Supreme Court veered away from Indra Sawhney, which held reservation in promotions as ‘constitutionally impermissible’ to uphold the validity of 77th amendment. All it wanted was data to justify reservation; question of law having been established, facts were needed.
The government response is reckless, to say the least. The Statement of objects and reasons to the amendment says that ‘It has been observed that there is difficulty in collection of quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment. Moreover, there is uncertainty on the methodology of this exercise.’ Instead of complying with a requirement of an otherwise favourable judgement, it decided to amend the Constitution itself! If this is not contempt, what else is?
Six years into the judgement and 62 years into the reservations regime, the government with its oversized bureaucracy, which includes beneficiaries of article 16 (4) looks stupid and is unable to provide data!
But it is smart when it comes to amending article 16 (4A). The first amendment- ‘the Scheduled Castes and the Scheduled Tribes notified under article 341 and article 342, respectively, shall be deemed to be backward’- takes away the first requirement of the Supreme Court’s regarding the establishment of backwardness. How is backwardness established? Not by any social or educational or economic criteria but by simple ‘deeming’. P S Krishnan argues in Frontline that SC/STs’ claim for reservation is not based on backwardness but on issues like untouchability, etc. and hence their backwardness need not be proved. This view of his is not reflected in articles 341 and 342, which define SC/STs. Anup Surendranath’s objection, voiced in the op-ed of The Hindu dated September 6, 2012 in this regard stems from the possibility of ‘creamy layer’ test being applied to SC/STs through backdoor. As mentioned earlier in this article, Supreme Court made a clear distinction between the ‘disadvantaged position’ before entry into service and the absence of the same afterwards. In other words post entry into services normal presumption is that SCs and STs are at par with others unless there is reliable data to the contrary. Under such circumstances the application creamy layer test is but natural and logical.
Secondly the amendment bill drops the reference to ‘…(SC/STs) which, in the opinion of the State, are not adequately represented.’ According to P S Krishnan there was no need to drop this phrase because the language of the article suggests that the State has already formed an opinion that SCs and STs are inadequately represented and this cannot be called into question. It is different from article 16 (4) which provides for reservation for ‘any backward class citizens which in the opinion of the State’ is under represented. In that case it is expected of the government to explain how it chose certain classes from among the backward class as inadequately represented. In other words, according to Krishnan it is the choice of a few groups from the whole, which the government has to justify. Unfortunately this is too narrow a view of the Court’s expectation. The Court questions everything in this regard- the basis for forming the opinion and also the definition of adequate representation. Surendranath, however concedes the Court’s right to ask for sufficient data to prove inadequate representation. Madhav Khosla, on the other hand makes the most valid point in this regard in his article in The Hindu. Justifying reservation on the basis of inadequate representation implies ‘equality of outcome’ which has been rejected by our Constitution. If in spite of reservation at the entry level there is not adequate representation at higher levels, one needs to give careful consideration to the ‘equality of opportunity’ provided at the entry level. This is what the anti-reservations have been shouting from the rooftop all these years- thoughtless inclusion of a plethora of castes in the backward/SC/ST list and offering illogical relaxations in the standards at the time of entry aimed at vote bank politics kill the incentive to compete, encourage the SC/ST/BCs to be complacent and consequently lead to their inadequate representation at higher levels. SC/ST/BCs need support in the form of adequate training so that they can equip themselves and compete with the general category candidates.
The final nail was the insertion of the phrase ‘nothing in article 335 shall prevent the State from making any provision for reservation in matters of promotions.’ Article 335 insisted on maintaining efficiency of administration while considering the claims of SC/STs. Supreme Court’s third requirement in Nagaraj verdict was also given a go by. Surendranath dismisses the Court’s approach to efficiency as ‘too simplistic’ and argues that the government should have provided the Court with a ‘thicker understanding of efficiency’; however he does not specify what the same is. Krishnan, as usual harps on the language of article 335 and opines that the phrase relating to maintenance of efficiency is a ‘subordinate phrase’ and does not dilute the constitutional mandate of considering the claims of SC & STs. Surendranath’s accusation of too simplistic approach perhaps applies more to Krishnan than to Supreme Court.
PS: The irony is that this amendment will take retrospective effect from 1992! We saw recently how Mainstream Media strongly criticized the retrospective application of Tax Laws. Interestingly no one seems to be objecting to this retrospective application. How could this parliament claim to represent the views of say 10th Lok Sabha, which passed the 77th amendment?