and the Bahujan Samaj Party witnessed in the Rajya Sabha following the introduction of the Constitution (117th Amendment) Bill, 2012 by minister of state for personnel, public grievances and pensions V Narayansamy is a testimony to how divided the political class is on this contentious issue.
The amendment seeks to substitute clause 4A of Article 16 of the Constitution with a new clause 4A, according to which, notwithstanding anything contained elsewhere in the Constitution, SCs and STs respectively, shall be deemed to be backward. It seeks to give retrospective effect to the proposed clause 4A of Article 16 for reservation in promotions with consequential seniority with effect from the date of coming into force of that clause as originally introduced, that is, from June 17, 1995.
The SCs and the STs have been getting reservation in promotions since 1955. But in 1992, the Supreme Court declared it unconstitutional in the Indra Sawhney case. During Narasimha Rao's government, the Constitution was amended in 1995 and a new clause (4A) was added to Article 16 to enable the government to give reservation in promotions to SC and ST employees. The provision was further modified in 2001 during the NDA rule to provide consequential seniority to SC and ST employees promoted through reservation.
But in the Nagaraj case in 2006, while upholding the validity of 77th Constitutional Amendment, 1995 and 85th Constitutional Amendment of 2001, the Supreme Court said 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.
Since then, the apex court has upheld verdicts of the Allahabad and Rajasthan high courts striking down provisions for reservation in promotions.
In April this year, while clarifying the constitutional position, the apex court said that Clause (4A) of Article 16 will be governed by two compelling reasons - "backwardness" and "inadequacy of representation", as mentioned in Article 16(4). "If the said two reasons do not exist, then the enabling provision (for reservation in promotions) cannot be enforced."
Faced with difficulties in the collection of quantifiable data showing backwardness among SCs and STs, inadequacy of their representation in public employment and uncertainty on the methodology of the exercise, the government called an all-party meeting on August 21 that expressed a general consensus to carry out an amendment in the Constitution to overcome the situation created by apex court's verdicts. But now the vanishing political consensus on the amendment puts a question mark on the chances of the Bill getting translated into a law.
Second, even if the constitutional amendment is passed, it is highly unlikely that it would withstand judicial scrutiny, for it gives overriding effect to the proposed clause 4A of Article 16 over Articles 14, 15, and other clauses of Article 16 that propound general principle of equality as fundamental rights.
Third, the amendment may be hit by Article 13(2) of the Constitution which declares "void" any law that abridges fundamental rights.
Fourth, the amendment, if carried, would render redundant Article 335, which - as interpreted by the Supreme Court -can be relaxed but not obliterated.
It is indeed very sad that even 65 years after Independence, large sections of our society still remain poor and backward and need to be supported by the State's affirmative action and reservation in jobs and education.
If political parties are really concerned about the welfare of SCs and STs, instead of re-introducing reservation in promotion, they should ensure the creamy layer among these communities are kept out of the purview of quota as it's done in the OBC reservation. This will prevent the rich among these groups from reaping all the benefits of quota in jobs and education at the cost of the most backward among them, who are yet to get their due.