A constitutional amendment bill was passed yesterday in the Rajya Sabha. This is the 117th Amendment bill which I had discussed in depth in May 2012 in “Constitutional amendment around the corner”

The sheer misinformation, under coverage, and smokescreens in the media on this crucial issue is mind numbing. Here is todays editorial in The Indian Express.

Have parties considered that a quota in promotions may not be the best way to address the problem?

later in the evening, the Rajya Sabha passed the Constitution (117th Amendment) Bill, 2012, to extend the benefits of quota in promotions to all Scheduled Castes and Scheduled Tribes, and to override Article 335, which requires their claims to be balanced by concern for the efficiency of government.

Source : Indian Express

But here is the thing.

The promotion quota already exists. It has for decades. The question of whether or not there is a better alternative isn’t even in front of us. It is completely irrelevant to the events of the day and this editorial is clearly a distraction from the main issues. I anticipated exactly this media misinformation campaign, which is why I preemptively wrote the May 2012 post. Can they miss it ? I think not, it is on the top of Google for this topic. This amendment is about removal of the last remaining constraints on preferential treatment of a class of citizens. Lets jump in.

The thorn : Nagaraj vs Union of India (2006)

I wont repeat all points made in the previous blog on the topic, but a quick recap is in order. M Nagaraj vs India (2006) was a case challenging the whole burst of constitutional amendments related to promotion quota which themselves were passed to obliterate earlier SC judgments in Ajit Singh 1 & 2, Sabharwal, and a slew of other cases. Nagaraj upheld ALL the challenged amendments (77,81,82,85th) with the following rider.

It was going to uphold all of them because it believed it would not result in excesses due to the data requirements.

The state had to collect data for a) backwardness of the class and b) inadequacy of representation.

This stands till today. The UP Promotion Quota was struck down because of the failure of the government to provide such data.

The communal roster

I bet if you watched the media or read the papers you would’nt know that all recruitment and promotions in government jobs are controlled by device called a communal roster. This device is at the root cause of the problem. A quick summary again of how this works.

Say you have 100 positions at Level A

The individual positions are marked like so SC, ST, OBC, GC, GC, GC, SC, ST. . etc. (like DNA sequences)

The sequence is called the roster points notified by central and state govts. They are called 100-Pt/200-Pt rosters.

Similarly you have roster points for the 50 positions at Level B

There is something called a replacement rule – if you are a roster point reserved officer vacating your position due to a promotion, exit, or retirement – your position can only be taken by another officer of the same category (SC/ST).

If you are a general category vacating your roster point, your position can be taken by anyone including an SC/ST/General.

This roster system works very well if all you wanted to do was a pure communal quota. IE – if x% of seats are also reserved for general category only. But this isnt allowed by the courts. There is one more part, an important part, of the puzzle. Its called consequential seniority. This is the source of endless litigation and the main reason behind the 82,83,85th amendments and the 117th bill (this one). As you have seen , the roster system accelerates those with a quota and slows down those who dont have one. How does it work along with consequential seniority.

Imagine your job promotions are controlled by a turnstile that alternates between green and blue positions. Green allows anyone to pass through and blue only allows some class of people. Now imagine another turnstile to the next level where those who passed the previous turnstile in the express route are now deemed ahead of you for passing through the next green. Imagine 6 levels of such turnstiles at every step of your career. This is the state of government employment today. This is why those on the outside are protesting to such an extent.

Narrow tailoring

Lets borrow this phrase from the US rulings on affirmative action to illustrate what is happening as a result of this roster system. Here is a story

For example in Bihar, all 19 posts of chief engineer in irrigation department are occupied by officers of the SC category. Likewise, all 14 chief engineers in PWD are from the SC/ST category. Similarly, in Karnataka, all 31 posts of chief engineers in Karnataka Power Corporation are occupied by the officers of the SC/ST category. “Why the issue was not taken up in Parliament before the general elections of 2009 or the UP assembly elections? It is nothing but a conspiracy by Congress and the BJP,” Dubey said Source :TOI

So what the roster system has done is concentrate reserved candidates at higher levels. Recall that anyone can go through the ‘green’ turnstile. But zooming out to overall levels, due to the late impact of consequential seniority and other factors like direct recruitment the numbers are on the low side 11% against 18% for SC. The key point is that given enough time the roster + consequential seniority will concentrate almost exclusively the reserved candidate at the top.

How does Nagaraj help here ?

If you were an general category Asst Engineer in Bihar Irrigation Department you would find it extremely cruel that your career has effectively ended because even though at the next level 90% of seats are occupied by SC officers, you are shut out citing an overall deficiency across the department, state, even country. Thus the policy isnt narrowly tailored, rather adhoc with respect to the width of its application. The Nagaraj judgment sort of puts a spanner in the works here. Once such anomalies are brought to light by parties with some standing the court can intervene and halt the roster. That is the last and only check available. The 117th amendment removes that check.

Will this pass muster

Looks like the Winter session ends in a couple of days, so the Lok Sabha might only take it up in the next session. This amendment is almost certain to be challenged immediately. What will the court do ? I think it would be a monumental task for any bench to square this amendment with any conception of equality however wild it is. In Nagaraj, the bench heavily relied on the adequacy requirement to set aside fears of the 4 amendments violating the basic structure. Even in the UP Power Corp case the court hinted that an amendment to remove all checks will be a violation of basic structure. Ultimately, the court which quotes Amartya Sen in its opinions (see Nagaraj) will be confronted with the strict scrutiny doctrine. The more you deviate from well understood equality to fuzzy concepts like proportional equality or substantive equality the tougher it will be to escape the hard work of strict scrutiny.