The prime minister recently asserted his support for reservation policies, but the stalling of a bill for reservations in promotions for SCs/STs tells another story
New Delhi: In his address at the foundation laying ceremony for the Dr. BR Ambedkar National Memorial on March 21, Prime Minister Narendra Modi asserted that the reservation policy for Scheduled Castes (SCs) and Scheduled Tribes (STs) would not be diluted even if Ambedkar himself were to come back to life and demand its revocation.
However, if one takes the PM’s assertion at face value and then looks at the facts, what emerges is a huge inconsistency between the assertion and the actual performance of his government in securing reservations for SCs and STs.
Among the concerns on reservation which the SCs and STs have at present is the non-passage of the Constitution 117th Amendment Bill, 2012. The bill seeks to undo recent Supreme Court judgments which have made it difficult for the Central and state governments to reserve posts for SCs and STs in promotions.
The recent Supreme Court judgment in Suresh Chand Gautam vs State of Uttar Pradesh, delivered on March 9, has made it practically impossible for aggrieved SCs and STs to seek judicial remedy in the face of indifference from successive governments to their Constitutional duty to ensure reservations. In this judgment, the court held that the power which the state has to reserve posts in promotions is only discretionary, and the court cannot direct the state to exercise its discretionary power.
The Constitution 117th Amendment Bill was passed by the Rajya Sabha on December 17, 2012. After the change of government in 2014, it is yet to be introduced by the government in the Lok Sabha.
Since the bill has been passed by the Rajya Sabha, a permanent body, it has not lapsed with the change of government, and can be given a fresh lease of life with its introduction in the Lok Sabha.
However, Modi and his advisers have not taken any steps to pass this amendment.
Background
The background to this bill can be gleaned from the PRS website and other sources.
In 1992, the Supreme Court’s nine-judge bench in the case of Indra Sawhney v Union of India had held reservations in promotions to be unconstitutional.
In 1995, parliament amended the constitution and inserted Article 16(4A), providing for reservation in promotions for SCs and STs, which in the opinion of the state, are not adequately represented in the services. In 2001, this provision was further amended, to permit reservation in promotion, with consequential seniority, to any class or classes of posts in the services under the government in favour of the SCs and STs.
In 2000, Article 16(4B) was inserted through another amendment to enable the state to consider 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 (4A) as a separate class of vacancies to be filled in any succeeding year or years. This provision makes it clear that such class of vacancies can be filled over and above the ceiling of 50% reservation on the total number of vacancies of that year.
The Supreme Court had fixed the ceiling of 50% on total reservations to be filled in a year in M.R. Balaji v State of Mysore, way back in 1962.
In 2006, the Supreme Court’s five-judge constitution bench in M. Nagaraj v Union of India upheld the constitutional validity of these amendments. While doing so, however, the court held that before framing any law under these provisions, the state will have to satisfy the test of backwardness of the beneficiary group, its inadequate representation and efficiency of administration.
The court, in M.Nagaraj departed from Indra Sawhney in key aspects, although it was bound by the larger bench’s decision. In Indra Sawhney, the court had clearly held that in determining adequacy of representation of a beneficiary group, the government’s decision is final and the court is expected to defer to it. In M.Nagaraj, however, the court implicitly rejected this holding.
Second, the court in Indra Sawhney held that the principle of creamy layer is inapplicable to reservations for SCs and STs. But the M.Nagaraj bench justified the application of creamy layer principle indirectly, by insisting on the satisfaction of the three-fold criteria, namely, backwardness, inadequate representation in services and efficiency in administration, to justify reservations for SCs and STs in promotions. Experts have assailed the M.Nagaraj bench’s interpretation of these three criteria, which is at odds with the larger bench’s decision in Indra Sawhney.
In subsequent decisions, including the latest, Suresh Chand Gautam, the court refused to refer the issue to a larger bench. Suresh Chand Gautam was decided by a two-judge bench, comprising of Justices Dipak Misra and Prafulla C Pant.
For a while, the political class was indifferent to the Supreme Court’s judgment in M.Nagaraj. This was in spite of the demands made for amending the constitution when the Supreme Court upheld two high court judgments, one by the Rajasthan high court, and another by the Allahabad high court, which quashed reservations in promotions relying on M.Nagaraj.
However, when in April 2012, the Supreme Court struck down Rule 8-A of the Uttar Pradesh Government Servants Seniority Rules that provided for consequential seniority [in U.P. Power Corporation Limited v Rajesh Kumar], the court held that the state government ought to have collected data with regard to the backwardness and inadequate representation of SCs and STs in the state government, in accordance with the binding judgment in M.Nagaraj.
The court also added that the relevant unit for determining ‘adequacy of representation’ is cadre strength. This means that data which the state relies on must be very pointed, down to the cadre, in order to show inadequacy of representation.
That Justice Dipak Misra authored both the judgments in U.P.Power Corporation Limited and Suresh Chand Gautam may well be a coincidence.
Concerned with the Supreme Court’s judgment in the case, the UPA government, after an all-party meeting, introduced the 117th Constitution Amendment Bill, to substitute the present Article 16(4A), to provide that all the SCs and STs notified under Article 341 and 342, respectively, shall be deemed to be backward.
The statement of objects and reasons (SOR) attached to this bill claimed that there was difficulty in collection of quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment. The SOR also claimed that there was uncertainty on the methodology of this exercise.
Impact of the bill not being passed
To remind the government about the non-passage of the 117th Constitution Amendment Bill in the Lok Sabha more than three years after its passage in the Rajya Sabha is not to ignore the concerns expressed by some observers about the drafting of the bill. The bill could have been referred to a select committee of parliament to address those concerns.
The government’s lack of interest in introducing the bill in the Lok Sabha has left aggrieved SCs and STs in a limbo. Justice Dipak Misra has now held in Suresh Chand Gautam that the court could not direct the state to collect data about the backwardness and representation of SCs and STs in order to justify reservation in promotions, and that the state is not bound to do so as Article 16(4A) is only an enabling provision (as held by the Court in M.Nagaraj).
In Suresh Chand Gautam, the petitioners were those aggrieved by reversion of their promotion, as a consequence of the court’s decision in U.P. Power Corporation and M. Nagaraj. A total of 15,226 employees in groups A, B and C in various departments and organisations of the Uttar Pradesh government have been reverted, according to the state government’s own admission in court. The petitioners in Suresh Chand Gautam, therefore, wanted the court to direct the state to collect the necessary data to justify reservations in promotions, which came under a cloud as a result of M.Nagaraj.
Strangely, in Suresh Chand Gautam, the state of Uttar Pradesh, despite being the respondent, was not issued notice and did not reveal its stand on the issue, despite there being a political consensus in 2012 that the Supreme Court judgments in M.Nagaraj and U.P. Power Corporation Limited were erroneous, and needed corrective steps by parliament.
The latest judgment in Suresh Chand Gautam has only served to further reinforce the flaw in M. Nagaraj and U.P. Power Corporation Limited.
Need for reservations
If any data is required to justify reservations for SCs and STs in promotions, one has to only read the government’s Action Taken Report on the recommendations contained in the 26th Report of the Committee on the Welfare of SCs and STs on the subject “Review of representation of SCs and STs in senior positions of Government of India”, which was submitted to parliament in March 2013. The ATR on this was presented to Parliament on April 30, 2015.
The committee, in its 2013 report, noted that the representation of SC and ST candidates among higher echelons of bureaucracy was rather dismal. The committee was also concerned that no SC official occupied the post of secretary in any offices under the government of India.
The report found that the Department of Personnel and Training was not serious enough to get the reservation policy implemented in letter and spirit. It put matters succinctly: “Even though the constitution lays down the provision contained in Article 16(4A) as enabling, the onus of responsibility for its enablement lies with the DoPT”.
The committee has recommended that the DoPT should maintain centrally collected data for reservation, promotion, etc. so that each state may easily prove whether SCs/STs are adequately represented or not. It indicted the DoPT for not being serious about getting the reservation policy for SCs/STs implemented in the right direction.
Possible steps
The revival of the pending 2012 bill to restore reservations for SCs and STs in promotions is just one step which could vindicate what the prime minister has said in defence of reservations. The other step which his government could take is enact a law under Article 15(5) of the constitution, which enables reservation in private educational bodies and was inserted through the 93rd Amendment Act, 2005.
Although the constitutionality of this provision was upheld by the Supreme Court in the Ashoka Kumar Thakur v Union of India in 2008, the previous UPA Government did not take any steps to make any special provision including reservation by law for the SCs, STs and OBCs, as envisaged, to enable their admission to all private educational institutions other than minority ones.
Therefore, if the prime minister meant what he said, his next logical step must be to introduce a law in parliament under Article 15(5) to achieve the purpose mentioned therein.
However, if one takes the PM’s assertion at face value and then looks at the facts, what emerges is a huge inconsistency between the assertion and the actual performance of his government in securing reservations for SCs and STs.
Among the concerns on reservation which the SCs and STs have at present is the non-passage of the Constitution 117th Amendment Bill, 2012. The bill seeks to undo recent Supreme Court judgments which have made it difficult for the Central and state governments to reserve posts for SCs and STs in promotions.
The recent Supreme Court judgment in Suresh Chand Gautam vs State of Uttar Pradesh, delivered on March 9, has made it practically impossible for aggrieved SCs and STs to seek judicial remedy in the face of indifference from successive governments to their Constitutional duty to ensure reservations. In this judgment, the court held that the power which the state has to reserve posts in promotions is only discretionary, and the court cannot direct the state to exercise its discretionary power.
The Constitution 117th Amendment Bill was passed by the Rajya Sabha on December 17, 2012. After the change of government in 2014, it is yet to be introduced by the government in the Lok Sabha.
Since the bill has been passed by the Rajya Sabha, a permanent body, it has not lapsed with the change of government, and can be given a fresh lease of life with its introduction in the Lok Sabha.
However, Modi and his advisers have not taken any steps to pass this amendment.
Background
The background to this bill can be gleaned from the PRS website and other sources.
In 1992, the Supreme Court’s nine-judge bench in the case of Indra Sawhney v Union of India had held reservations in promotions to be unconstitutional.
In 1995, parliament amended the constitution and inserted Article 16(4A), providing for reservation in promotions for SCs and STs, which in the opinion of the state, are not adequately represented in the services. In 2001, this provision was further amended, to permit reservation in promotion, with consequential seniority, to any class or classes of posts in the services under the government in favour of the SCs and STs.
In 2000, Article 16(4B) was inserted through another amendment to enable the state to consider 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 (4A) as a separate class of vacancies to be filled in any succeeding year or years. This provision makes it clear that such class of vacancies can be filled over and above the ceiling of 50% reservation on the total number of vacancies of that year.
The Supreme Court had fixed the ceiling of 50% on total reservations to be filled in a year in M.R. Balaji v State of Mysore, way back in 1962.
In 2006, the Supreme Court’s five-judge constitution bench in M. Nagaraj v Union of India upheld the constitutional validity of these amendments. While doing so, however, the court held that before framing any law under these provisions, the state will have to satisfy the test of backwardness of the beneficiary group, its inadequate representation and efficiency of administration.
The court, in M.Nagaraj departed from Indra Sawhney in key aspects, although it was bound by the larger bench’s decision. In Indra Sawhney, the court had clearly held that in determining adequacy of representation of a beneficiary group, the government’s decision is final and the court is expected to defer to it. In M.Nagaraj, however, the court implicitly rejected this holding.
Second, the court in Indra Sawhney held that the principle of creamy layer is inapplicable to reservations for SCs and STs. But the M.Nagaraj bench justified the application of creamy layer principle indirectly, by insisting on the satisfaction of the three-fold criteria, namely, backwardness, inadequate representation in services and efficiency in administration, to justify reservations for SCs and STs in promotions. Experts have assailed the M.Nagaraj bench’s interpretation of these three criteria, which is at odds with the larger bench’s decision in Indra Sawhney.
In subsequent decisions, including the latest, Suresh Chand Gautam, the court refused to refer the issue to a larger bench. Suresh Chand Gautam was decided by a two-judge bench, comprising of Justices Dipak Misra and Prafulla C Pant.
For a while, the political class was indifferent to the Supreme Court’s judgment in M.Nagaraj. This was in spite of the demands made for amending the constitution when the Supreme Court upheld two high court judgments, one by the Rajasthan high court, and another by the Allahabad high court, which quashed reservations in promotions relying on M.Nagaraj.
However, when in April 2012, the Supreme Court struck down Rule 8-A of the Uttar Pradesh Government Servants Seniority Rules that provided for consequential seniority [in U.P. Power Corporation Limited v Rajesh Kumar], the court held that the state government ought to have collected data with regard to the backwardness and inadequate representation of SCs and STs in the state government, in accordance with the binding judgment in M.Nagaraj.
The court also added that the relevant unit for determining ‘adequacy of representation’ is cadre strength. This means that data which the state relies on must be very pointed, down to the cadre, in order to show inadequacy of representation.
That Justice Dipak Misra authored both the judgments in U.P.Power Corporation Limited and Suresh Chand Gautam may well be a coincidence.
Concerned with the Supreme Court’s judgment in the case, the UPA government, after an all-party meeting, introduced the 117th Constitution Amendment Bill, to substitute the present Article 16(4A), to provide that all the SCs and STs notified under Article 341 and 342, respectively, shall be deemed to be backward.
The statement of objects and reasons (SOR) attached to this bill claimed that there was difficulty in collection of quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment. The SOR also claimed that there was uncertainty on the methodology of this exercise.
Impact of the bill not being passed
To remind the government about the non-passage of the 117th Constitution Amendment Bill in the Lok Sabha more than three years after its passage in the Rajya Sabha is not to ignore the concerns expressed by some observers about the drafting of the bill. The bill could have been referred to a select committee of parliament to address those concerns.
The government’s lack of interest in introducing the bill in the Lok Sabha has left aggrieved SCs and STs in a limbo. Justice Dipak Misra has now held in Suresh Chand Gautam that the court could not direct the state to collect data about the backwardness and representation of SCs and STs in order to justify reservation in promotions, and that the state is not bound to do so as Article 16(4A) is only an enabling provision (as held by the Court in M.Nagaraj).
In Suresh Chand Gautam, the petitioners were those aggrieved by reversion of their promotion, as a consequence of the court’s decision in U.P. Power Corporation and M. Nagaraj. A total of 15,226 employees in groups A, B and C in various departments and organisations of the Uttar Pradesh government have been reverted, according to the state government’s own admission in court. The petitioners in Suresh Chand Gautam, therefore, wanted the court to direct the state to collect the necessary data to justify reservations in promotions, which came under a cloud as a result of M.Nagaraj.
Strangely, in Suresh Chand Gautam, the state of Uttar Pradesh, despite being the respondent, was not issued notice and did not reveal its stand on the issue, despite there being a political consensus in 2012 that the Supreme Court judgments in M.Nagaraj and U.P. Power Corporation Limited were erroneous, and needed corrective steps by parliament.
The latest judgment in Suresh Chand Gautam has only served to further reinforce the flaw in M. Nagaraj and U.P. Power Corporation Limited.
Need for reservations
If any data is required to justify reservations for SCs and STs in promotions, one has to only read the government’s Action Taken Report on the recommendations contained in the 26th Report of the Committee on the Welfare of SCs and STs on the subject “Review of representation of SCs and STs in senior positions of Government of India”, which was submitted to parliament in March 2013. The ATR on this was presented to Parliament on April 30, 2015.
The committee, in its 2013 report, noted that the representation of SC and ST candidates among higher echelons of bureaucracy was rather dismal. The committee was also concerned that no SC official occupied the post of secretary in any offices under the government of India.
The report found that the Department of Personnel and Training was not serious enough to get the reservation policy implemented in letter and spirit. It put matters succinctly: “Even though the constitution lays down the provision contained in Article 16(4A) as enabling, the onus of responsibility for its enablement lies with the DoPT”.
The committee has recommended that the DoPT should maintain centrally collected data for reservation, promotion, etc. so that each state may easily prove whether SCs/STs are adequately represented or not. It indicted the DoPT for not being serious about getting the reservation policy for SCs/STs implemented in the right direction.
Possible steps
The revival of the pending 2012 bill to restore reservations for SCs and STs in promotions is just one step which could vindicate what the prime minister has said in defence of reservations. The other step which his government could take is enact a law under Article 15(5) of the constitution, which enables reservation in private educational bodies and was inserted through the 93rd Amendment Act, 2005.
Although the constitutionality of this provision was upheld by the Supreme Court in the Ashoka Kumar Thakur v Union of India in 2008, the previous UPA Government did not take any steps to make any special provision including reservation by law for the SCs, STs and OBCs, as envisaged, to enable their admission to all private educational institutions other than minority ones.
Therefore, if the prime minister meant what he said, his next logical step must be to introduce a law in parliament under Article 15(5) to achieve the purpose mentioned therein.
Another test for the Modi government is coming up on March 28, when the Supreme Court’s constitution bench is likely to begin hearing a bunch of petitions challenging the extension of reservation of seats in the Lok Sabha and state assemblies for SCs and STs every 10 years under Article 334 of the Constitution in Ashok Kumar Jain vs Union of India.
Legal luminaries like PP Rao and Rajeev Dhavan, representing the petitioners, opposed repeated extensions to the reservation of seats during the last preliminary hearing. There is much at stake for the SCs and STs here, unless the Centre makes a spirited and convincing defence of reservation of seats in India’s elected bodies.
As in the case of reservation in promotions, in Ashok Kumar Jain too, the petitioners have attacked the non-application of mind and absence of fresh data to prove inadequacy of representation, and challenge repeated extensions to reservation of seats in our legislative bodies.