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Ahead of the Lok Sabha elections in 2019, the BJP government is under a great deal of pressure to show its pro-Dalit credentials.

The subject of reservation in education and jobs remains one of the most contentious and emotive issues in Indian politics, perhaps second only to the Ram Janmabhoomi episode. It has the power to divide the Indian society on bitter caste lines.

The news that the Supreme Court has allowed for reservation in promotions through its order on a special leave petition brought by the government caused consternation among government employees across the country.

The court ordered that “… the government was not debarred from giving promotions, in accordance with the law”. The question of “what law?” remains unanswered. The situation, however, is clear to any person with even a cursory knowledge of the law.

In the aftermath of the vitriolic Mandal Commission agitation in 1990, the most celebrated judgment of the Supreme Court was delivered on reservation in the Indra Sawhney vs Union of India and others case on 16 November 1992. The court held reservation in promotions unconstitutional.

The court said: “Reservation in promotion is constitutionally impermissible as once the advantaged and disadvantaged are made equal 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.”

Bringing constitutional amendments

Thereafter, the powerful lobby comprising Scheduled Caste and Scheduled Tribe MPs became active, fearing a loss of face in front of their vote bank. This lobby is believed to have pressurised the government into bringing four successive constitutional amendments, which have now become a bitter bone of contention between the employees of general category and OBCs on the one hand and the SC/STs on the other. These four constitutional amendments are the 77th, 81st, 82nd and 85th, brought forth in 1995, 2000 and 2001.

The Constitution (77th Amendment) Act, 1995 addressed the issue of reservation in promotions by inserting the clause 16(4A).

“… The Scheduled Castes and the Scheduled Tribes have been enjoying the facility of reservation in promotion since 1955. The Supreme Court in its judgment dated 16th November 1992 in the case of Indra Sawhney and others vs Union of India and others, however, observed that reservation of appointments or posts under Article 16(4) of the Constitution is confined to initial appointment and cannot extend to reservation in the matter of promotion…”

“… Since the representation of the Scheduled Castes and the Scheduled Tribes in services in the States have not reached the required level, it is necessary to continue the existing dispensation of providing reservation in promotion…”

“… To carry out this, it was necessary to amend Article 16 of the Constitution by inserting a new clause (4A) in the said Article to provide for reservation in promotion for the Scheduled Castes and the Scheduled Tribes…”

The above position basically sums up the stand of successive governments and all political parties across the spectrum vis-à-vis their SC/ST vote bank. The other three amendments have a more formal and accommodating nature.

Nagaraj case lays the law

All the four amendments to the Constitution were challenged by M. Nagaraj of Karnataka. The Supreme Court, in its seminal judgment on 19 October 2006, ruled:

“… We reiterate that the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse… ”

Therefore, the Nagaraj judgement laid down the “law” which was to guide the governments in the matter of reservation in promotions. The government had to establish, on the basis of quantifiable data, the compelling reasons for providing reservation in promotions to a specific community. The data had to establish backwardness, inadequacy of representation yet at the same keep in mind the overall efficiency of the State administration under Article 335.

What others say

In the case of U.P. Power Corporation Ltd vs Rajesh Kumar & others on 27 April 2012, the Supreme Court ruled that Article 16(4), which protects the interests of certain sections of society, has to be balanced against Article 16(1) which protects the interests of every citizen of society. The court stated that the exercise of the powers of the State cannot be arbitrary, but must be exercised on the basis of quantifiable data.

In B.K. Pavitra & ors vs Union of India & ors case on 9 February 2017, the court said:

“Reservation is necessary for transcending caste and not for perpetuating it. Reservation has to be used in a limited sense otherwise it will perpetuate casteism in the country. Reservation is underwritten by a special justification.”

In All India Equality Forum & others vs Union of India through its Secretary & others case, the Delhi high court on 23 August 2017 quashed the union government’s order on reservation in promotion. The court said:

“Therefore, in every case where the State decides to provide for reservation there must exist two circumstances, namely, “backwardness” and “inadequacy of representation”. As stated above, equity, justice and efficiency are variable factors. These factors are context-specific.”

These rulings show that it amply clear that till date the Nagaraj judgment lays down the “law” with respect to reservations in promotion of government employees.

In view of the forthcoming Lok Sabha elections of 2019, and in the face of the Supreme Court diluting the arrest provisions in the SC/ST atrocities cases, the BJP government is under a great deal of pressure to show its pro-Dalit credentials.

Therefore, even as the Supreme Court has clearly reiterated its earlier stand, the government is misrepresenting facts to convey that the way has been cleared for granting reservations in promotion.

Samir Singh Chandel is retired IAS officer and national convener of All India Equality Forum.

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