Thursday, September 6, 2012

Reservation in promotions for SC& ST (117th Constitutional Amendment), another blow to fairness and equality?

Parliament of India

As introduced in RajyaSabha, 117th constitutional amendment bill states,

It shall be deemed to have come into force on the 17th day of June, 1995."

In the Constitution, in Part III, in article 16, for clause (4A), the following clause shall be substituted, namely
(4A) Notwithstanding anything contained elsewhere in the Constitution, the Scheduled Castes and the Scheduled Tribes notified under article 341 and article 342, respectively, shall be deemed to be backward and nothing in this article or in article 335 shall prevent the State from making any provision for reservation in matters of promotions, with consequential seniority, to any class or classes of posts in these services under the State in favour of the Scheduled Castes and the Scheduled Tribes to the extent of the percentage of reservation provided to the Scheduled Castes and the Scheduled Tribes in the services of the State.”.

77th Amendment Bill

Reservations in promotion have its own history. Since 1955, Republic of India has been giving reservations for SC & ST. However in "Indra Sawhney Vs. Union of India" case court stated that reservations in promotion are beyond the mandate of Article 16(4). Our respected law makers overcame this handicap by amending the constitution for the 77th time, by inserting a new clause 4A into the article 16.

4A states that "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."

85th Amendment Bill

To provide consequential seniority clause was again amended at 2001 (85th amendment); by replacing the words "in matters of promotion to any class" to "in matters of promotion, with consequential seniority, to any class". However, the lines "adequately represented in the services under the State" remained there. Now the problem is reservation in promotions are allowed if it’s proved that they are not adequately represented. So there should be some evidence for that.

While making decisions on the validity of Constitutional amendments during the case M.Nagaraj vs. Union of India & Others, observed that the concerned State will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation in promotion. HC Rajasthan and HC of Allahabad produced verdict on similar lines. Later SC upheld that verdict.

Constitution Of India

Why 117th Amendment? According to government

Now the government is again amending the constitution to remove the necessary of providing the proof for backwardness. Government is providing two reasons,

1. "difficulty in collection of quantifiable data showing backwardness of the class and inadequacy of representation of that class in public
2. "uncertainty on the methodology of this exercise"

My Questions

1. Well, if government is not sure about the data and the methodologies to assess the backwardness; on what basis GOI is extending reservations to promotions?

2. If the promotion is based on caste (with "consequential seniority" as an add-on) then where is the rule of fairness and equality?

3. Another moral issue with this amendment is, you can enjoy the protection of reservation no matter how rich and financially capable you are.

4. For empowerment and equal representation we may need to give reservation entry level (I still advocates reservation based on financial capabilities + add-ins if it’s that much urgent), but at the higher posts?

5. If somebody feels that they are deliberately discriminated in promotions due to their caste, then they can (and they should) go to administrative tribunals or courts. If there is no discrimination then what is the point of giving this type of promotions? Even if there is discrimination, then also there is no need for this sweeping bill. That situation can be (and should be) handled in other ways.

Hope that there will be adequate discussion on these issues in Parliament.



1. Government of India - 117th Constitutional Amendment Bill
2. Government to introduce reservation in promotions for SC/STs in Rajya Sabha today; Mulayam's party opposed - NDTV

Photo courtesy: Wikipedia

1 comment:

  1. Reply to your questions:-
    1) Even if data is no there then from the posts filled in govt vacancies since its introduction can reveal that till today the vacancies are not being filled up to the limit prescribed in the constitution. In higher posts representation are almost nil. Also there is widespread discrimination in terms of place of postings.SC/STs are always neglected in giving good postings not because of their capabilities but for the reason of there caste and no say in the system.
    2)Fairness and equality can only be talked about when they are at equal footing. There representation is very less in higher posts.
    3) How many SC/ST employees have u seen who are rich? They dont have land, no power, no strong economic background. There mostly earlier generations are either labourers or worked as slave in the fields of upper castes. If u take the job away from the sc/st persons then maximum of them would return to extreme pecuniary condition.
    4)The reservation since its introduction have not yielded results in terms of representation in higher posts. And finacial criteria have no meaning in our country as in villages even rich people belonging to upper castes have BPL cards only because of their influences.
    5)how many judges have u seen belong to SC/ST. They have not got justice for their social problems and believe me the SC/ST employees still face lot of discrimination when it comes in terms of getting postings or even promotions because of no say in the system